(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "International law studies : criminal jurisdiction over visiting armed forces"

U.S. NAVAL WAR COLLEGE 



International Law 
Studies 

19574958 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW STUDIES 
1957-1958 



CRIMINAL JURISDICTION OVER 
VISITING ARMED FORCES 

by 

Roland J. Stanger 



$ 



NAVPERS 15031 
Volume LII 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON: 1965 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D. C. 20402 Price $2.25 cents 



REVIEWED AND APPPnvcn 28 May 1965 

(Date) 




&~>4*&^ 



J ^—/LAJt^^J**^ 



Assistant Chief for Education and Training 



FOREWORD 

Since the Naval War College was founded in 1884, the study of 
International Law has been an important part of the curriculum. 
From 1894 to 1900, certain lectures given on International Law 
and the situations studied were compiled and printed, but with a 
very limited distribution. Commencing in 1901, however, the first 
formal volume of the Naval War College's "Blue Book" series was 
published. 

This book represents the fifty-second volume in the series as 
numbered for cataloging and reference purposes. This present 
volume is written by Professor Roland J. Stanger of the College 
of Law, The Ohio State University, who was the occupant of the 
Chair of International Law at the Naval War College during the 
1958-1959 school term. This volume by Professor Stanger repre- 
sents a valuable and complete compilation of reference material 
on Status of Forces Agreements, with particular emphasis on 
the field of criminal jurisdiction. 

The opinions expressed in this volume are those of the author 
and are not necessarily those of the United States Navy or of the 
Naval War College. 

C. L. Melson 

Vice Admiral, U.S. Navy 
President, Naval War College 



in 



PREFACE 

The American people seemingly now recognize that when a 
member of our armed forces stationed in a foreign country is ac- 
cused of crime, there are circumstances in which it is both proper 
and appropriate that he be tried by a court of the host country. 
Countries in which our troops are stationed seemingly likewise 
recognize that there are circumstances in which it is proper and 
appropriate that the accused be tried by an American court- 
martial rather than by a court of the host country. Drawing the 
line has not been, and will never be, easy. The purpose of this 
book is twofold. One is to point out where the not always bright 
line is drawn in the various arrangements which now govern the 
status of our forces abroad, and the considerations which have led 
to those arrangements. The other is to suggest the possible bases 
on which those arrangements could be refined the better to ac- 
commodate the conflicting interests at stake and to minimize the 
possibility of international misunderstanding. 

I wish to thank Vice Admirals S. H. Ingersoll, B. L. Austin, 
and C. L. Melson, Presidents of the Naval War College, and their 
staffs, for their help and cooperation. I acknowledge also a debt of 
gratitude to Professor Joseph M. Snee, S. J. of Georgetown Uni- 
versity Law Center for his generosity in opening his invaluable 
files on status of forces problems to me ; and to Professors John P. 
Dawson of the Harvard Law School and Richard A. Falk of 
Princeton University for reading the manuscript and for their 
helpful suggestions. A special debt is likewise owed to the Office 
of the Judge Advocate General, Department of the Navy, par- 
ticularly the International Law Division, for their assistance in 
the preparation of this manuscript. For what is here offered I ac- 
cept full responsibility. 

Roland J. Stanger 
Columbus, Ohio 
March 9, 1965 



Vll 



TABLE OF CONTENTS 

Page 

FOREWORD iii 

PREFACE v 

INTRODUCTION xi 

Chapter 

I. JURISDICTION 1 

Territorial Jurisdiction 2 

Extraterritoriality 15 

II. IMMUNITIES 25 

Personal Immunity 26 

Official Acts 32 

III. JURISDICTION OVER MERCHANT 

VESSELS AND SEAMEN 43 

IV. WARSHIPS AND THEIR CREWS 55 

The Bases of Immunity 55 

Immunity of the Ship 59 

Immunity — Acts on Board 62 

A. The Crew 62 

B. Strangers 68 

Immunity of the Crew — Acts on Shore 69 

V. LAND FORCES 79 

Theoretical Bases for Immunity 82 

A. The Interests of the Sending State 82 

B. The Interests of Individuals 96 

C. The Interests of the Receiving State 101 

VI. THE PRACTICE OF STATES UP TO 1945 Ill 

VII. THE TREATY ERA 141 

Agreements for Exclusive Jurisdiction 150 

The NATO Agreement 154 

VIII. CLASSES OF PERSONS COVERED BY STATUS 

OF FORCES AGREEMENTS 157 

Members of the Armed Forces 158 

Civilians 162 

The Impact of Reid v. Covert 176 



Vlll 

TABLE OF CONTENTS— Continued 

Page 
Chapter 

IX. INTER SE OFFENSES 185 

X. ON-BASE OFFENSES 197 

XI. DUTY-CONNECTED OFFENSES 211 

Acts in the Performance of Duty 211 

Acts While on Duty 218 

Determination That the Offense was Duty-Connected 232 

XII. WAIVER 239 

XIII. ENFORCEMENT 247 

Police Power 249 

Custody 253 

Witnesses 256 

Civil Rights of the Accused 258 

XIV. CONCLUSION 263 

INDEX 387 



ix 
Appendices 

Appendix Page 

I. NATO Status of Forces Agreements 267 

II. Iceland. Annex to Defense Agreement 273 

III. The Netherlands. Annex to Agreement 

Implementing NATO Agreement 277 

IV. Greece. Agreement Implementing NATO Agreement 279 

V. Turkey. Agreement Implementing NATO Agreement 281 

VI. Germany. Convention on Rights and Obligations 

of Foreign Forces, as Amended 283 

VII. Germany. Agreement Supplementing NATO Agreement 293 

VIII. Germany. Protocol of Signature to Supplementary 

Agreement 309 

IX. Germany. Agreement on the Status of Persons on Leave 313 

X. Greenland. Agreement with Denmark on Defense 

of Greenland 315 

XI. Japan. Agreement Under Article VI of the Treaty 
of Mutual Cooperation and Security, and 

Agreed Minutes 319 

XII. Leased Bases. Agreement with Great Britain on 

Leased Naval and Air Bases 327 

XIII. Revised Leased Bases. Agreement with Great 

Britain Revising Leased Bases Agreement 331 

XIV. Canada. Agreement Relating to Application of NATO 

Agreement to Leased Bases in Canada 337 

XV. Bahama Islands. Agreement with Great Britain 

Relating to Long-Range Proving Ground 339 

XVI. Dominican Republic. Agreement Relating to 

Long-Range Proving Ground 347 

XVII. Philippines. Agreement Concerning Military Bases 349 

XVIII. Korea. Agreement on Jurisdiction 353 

XIX. Ethiopia. Agreement Concerning Defense Installations 355 

XX. Libya. Agreement on Defense Facilities in Agreed Areas 359 

XXI. Libya. Memorandum of Understanding 363 

XXII. Saudi Arabia. Agreement Concerning Dhahran Airfield 365 

XXIII. Spain. Procedural Agreement No. 16 to the 26 

September 1953 Agreements 367 

XXIV. West Indies Federation. Agreement Concerning 

United States Defence Areas 375 

XXV. Australia. Agreement Concerning the Status of 

United States Forces in Australia 381 



INTRODUCTION 

To meet world-wide threats of aggression, obligations between 
Free World nations presently require that their Armed Forces, 
together with civilian employees of these forces, and military and 
civilian dependents, be stationed in foreign territory. In fulfill- 
ment of its treaty responsibilities, the United States has about 
633,000 members of its Armed Forces, accompanied by some 
25,000 civilian employees, and almost one-half million dependents, 
presently stationed in more than sixty foreign states. With such 
large numbers of people involved, it is inevitable that some in- 
dividuals in these groups will become involved in matters relating 
to the criminal jurisdiction of receiving states. 

In particular situations and for various reasons, receiving 
states may want to prosecute foreign nationals, including military 
personnel, who allegedly have violated their laws. At the same 
time, and for other reasons, sending states may resist these 
efforts by receiving states to assert jurisdiction. Since misunder- 
standing and tension can develop to varying degrees in this en- 
vironment, any appraisal of what has come to be known as the 
Status of Forces problem should be in terms of the means by 
which friction can be minimized. 

The Status of Forces problem is only one area of criminal 
jurisdiction that produces international misunderstanding. Juris- 
diction over crime has always involved such primary interests 
as the requirement for public order and the rights of the in- 
dividual. In situations in which more than one state has a 
significant interest in an allegedly criminal act the problem can 
become acute. 

When the alleged offender is a member of the Armed Forces of 
a sending state, there can be a potential for serious misunder- 
standing. In a given set of circumstances, the sending state 
may quite properly feel that its military security interests are 
threatened if the receiving state claims jurisdiction over a mem- 
ber of its Armed Forces. At the same time, the receiving 
state may take the position that its public order is peculiarly 



Xll 

threatened, and that its own interests require an effective asser- 
tion of jurisdiction. 

In an examination of the jurisdictional aspects of these prob- 
lems, it should always be borne in mind that the issue is that of 
jurisdiction, not the guilt or innocence of the accused. If com- 
peting jurisdictional claims exist, a decision on this issue deter- 
mines only which state will try the accused. 

Since a balanced view must be maintained, it is useful to con- 
sider those situations involving jurisdiction over crimes in which 
states have reached an acceptable accommodation of conflicting 
interests. The framework of ideas so developed may be useful in 
at least two ways: (a) To point up various determinative con- 
siderations which must be taken into account; and (b) to suggest 
permissible solutions which will accommodate the interests of 
both sending and receiving states. 

This study will begin with a relatively brief discussion of the 
bases of jurisdiction, of immunity from jurisdiction and of the 
allocation of jurisdiction over the crews of merchant ships and of 
warships. There will follow a survey of the varied circumstances 
in which armed forces have been stationed in friendly foreign 
states, the interests of the sending and receiving states which 
have led them to claim jurisdiction over such forces, the rules of 
international law which are said to have been established in this 
area, and the manner in which jurisdiction has in fact been 
allocated between the sending and receiving states. Particular 
emphasis will be placed on the international agreements now 
governing the status of United States forces abroad. Since the 
most important of these is the NATO Agreement, the arrange- 
ments it establishes will be analyzed in detail and compared with 
those established in other agreements. From this comparison, a 
pattern of practices emerges with respect to the allocation of 
jurisdiction over visiting forces. 



CHAPTER I 
JURISDICTION 

In the vast majority of cases, crimes take place wholly in one 
state, involve only citizens of that state and have no discernible 
impact beyond that state's borders. There is nothing new, how- 
ever, in what may be called multinational crime. In such in- 
stances, the acts constituting a crime may take place in more than 
one state, or their impact may be felt outside the state in which 
they occur. Concretely, such crimes may range from a traffic 
violation to murder, from smuggling to counterfeiting to high 
treason. The accused, or the victim, may be a member of another 
state's armed forces, a tourist, a merchant seaman, a diplomat, or 
a foreign business man negotiating a single transaction. The 
accused or the victim may be a casual visitor or, on the contrary, 
may be residing more or less permanently in the country. Crime, 
in brief, involves a whole complex of relationships. Any one or 
more of its facets may so concern a state as to prompt it to assert 
jurisdiction, or to protest the assertion of jurisdiction by another 
state. 

In situations so complex, it would be surprising if simple rules 
had been or could be formulated which made possible the ready, 
frictionless resolution of controversies; especially since suprana- 
tional institutions empowered authoritatively to formulate rules 
circumscribing the competence of states are largely lacking. 1 
Traditional analysis 2 of the problem of criminal jurisdiction 



1 See, generally, Falk, "International Jurisdiction : Horizontal and Vertical 
Conceptions of Legal Order," 32 Temp. L. Q. 295 (1959). 

2 See Harvard Research in International Law, Jurisdiction With Respect 
to Crime, 29 A.J.I.L., Supp., pt. II, 439 (1935) [hereinafter cited as Harvard 
Research, Crime'] ; and the American Law Institute, Restatement, The 
Foreign Relations Law of the United States, (Proposed Official Draft, May 
3, 1962), [hereinafter cited as Restatement, Foreign Relations Law~\. It is 
not suggested that these careful analyses do not adequately recognize the 
many qualifications and limitations on the recognized bases of criminal 
jurisdiction. It is submitted, however, that any approach in terms of such 
principles is necessarily too rigid and hence to a degree misleading. 



nevertheless suggests that such rules exist in terms of the terri- 
torial principle, the nationality principle, etc. This analysis has 
the virtue of accenting the power of a state to assert jurisdiction 
in a wide variety of circumstances; and since the specific bases 
of jurisdiction are sufficiently vague, a state may shape its claims 
to bring the great majority of cases under one or the other prin- 
ciple. The added scope afforded by the position taken in the Lotus 
case, 3 that a state's competence is limited only by prohibitive 
rules, merely emphasizes the almost plenary power of a state to 
assert the applicability of its criminal law. 

Confronted with the firmly established rule that no state en- 
forces the criminal law of another state, 4 states may try to extend 
the reach of their law, in part because they must either apply 
their own law or forego prosecution altogether. 5 They have not, 
however, characteristically claimed the full range of competence 
which the Lotus case views as tolerable. The fact that the recog- 
nized bases of jurisdiction are not mutually exclusive seemingly 
invites controversy, but such has not been common. Rather, self- 
restraint on the part of states, prompted by considerations of 
comity, feasibility, and fairness, has resulted in a tolerable accom- 
modation of the conflicting interests involved. The Restatement 
(Second) Conflict of Laws summarizes the situation realistically 
with this statement: "A state has legislative jurisdiction if its 
contacts with a person, thing or occurrence are sufficient to make 
it reasonable to apply that state's law to create or affect legal 
interests." 6 

TERRITORIAL JURISDICTION 

Since the emergence of the territorial state, states have claimed 
criminal jurisdiction with respect to conduct taking place in their 
territory. Every state exercises jurisdiction on this basis and all 
states recognize that other states may do so, subject only to cer- 



8 Case of the S.S. Lotus, P.C.I.J., ser. A, No. 10 (1927). 

4 Harvard Research, Crime, supra, note 2, at 439. The rule may also serve 
to obscure the degree to which states are prepared to defer to foreign law 
since, if the offense is not extraditable, a state can evidence such willingness 
to defer only by releasing the accused. 

6 Trautman, Appendix to Chapter 11 of Brewster, Antitrust and American 
Business Abroad, 339, (1958). Acquiescing in a request for extradition may 
be a third alternative. 

8 Restatement (Second) Conflict of Laws, sec. 43 e (Tent. Draft No. 
3,1956). 



3 

tain narrow limitations. 7 It is implicit that jurisdiction so based 
extends to foreigners. "When the nationals of one state enter 
the territory of another state, whether for business or pleasure, 
they subject themselves to the laws of the latter state and, al- 
though those laws and the rules of procedure in the courts may 
be wholly different from those which obtain in their home state, 
so long as such laws and rules are not below the standard gener- 
ally obtaining in well-ordered states and are administered fairly 
and impartially, neither the aliens nor their governments have a 
right to complain." 8 

The soundness of this approach becomes evident when one con- 
siders the consequences should any rule of international law make 
all aliens immune from the local law, so that any alien a state ad- 
mitted to its territory could obey or disobey its laws at his 
pleasure. 9 These consequences have been given laboratory demon- 



T "It is universally recognized that States are competent, in general, to 
punish all crimes committed within their territory. * * * The general prin- 
ciple of territorial competence is too well-established to require an extended 
discussion of authorities. The principle is basic, of course, in Anglo- 
American jurisprudence. It is incorporated in all modern codes." Harvard 
Research, Crime, supra, note 2, at 480, 481 ; Article 17, Restatement, Foreign 
Relations Law, p. 49. 

But "[T]he original conception of law was personal, and it was only the 
rise of the modern territorial state that subjected aliens — even when they 
happened to be resident in a state not their own — to the law of that state. 
International law did not start as the law of a society of states each of 
omnicompetent jurisdiction, but of states possessing a personal jurisdiction 
over their own nationals and later acquiring a territorial jurisdiction over 
resident non-nationals." Brierly, The Basis of Obligation in International 
Law,lU (1958). 

8 2 Hackworth, International Law, 84 (1941). See also Moore, dissenting 
opinion in the Lotus case, supra, note 3, at 69; Beckett, "The Exercise of 
Criminal Jurisdiction over Foreigners," 1925 Brit. Yb. Int'l. L. 45. 

9 "When private individuals of one nation spread themselves through 
another, as business or caprice may direct, mingling indiscriminately with 
the inhabitants of that other; or when merchant vessels enter for the pur- 
poses of trade, it would be obviously inconvenient and dangerous to society, 
and would subject the laws to continual infraction, and the government to 
degradation, if such individuals or merchants did not owe temporary and 
local allegiance, and were not amenable to the jurisdiction of the country. 
Nor can the foreign sovereign have any motive for wishing such exemption. 
His subjects thus passing into foreign countries, are not employed by him, 
nor are they engaged in national pursuits. Consequently, there are powerful 
motives for not exempting persons of this description from the jurisdiction 



stration in the countries that have accorded extraterritorial rights 
to particular classes of foreigners. 

Some have found justification for the territorial principle in 
the concept of sovereignty. Others have pointed out that 
sovereignty is much too vague a concept to serve as an effective 
tool in making the subtle differentiations called for in delimiting 
criminal jurisdiction. 10 There are, nevertheless, the soundest of 
policy reasons for recognizing the primary jurisdiction of the 
state in which the acts occurred as the norm. The allocation of 
competence in the world is predominantly in terms of geography, 
and political and social institutions are shaped largely by the 
concept of the territorial state. 

Maintaining public order within its borders is a necessary func- 
tion of the modern state. More broadly, the state is recognized 
as entitled to determine the kind of social and economic order 
which is to prevail in its territory, in keeping with its responsi- 
bility to promote the welfare of its citizens. 11 Criminal law, both 
in what it prohibits and what it permits, is one of the means of 
shaping that order. The competence of the territorial state to 
proscribe and its privilege to permit certain activities, by aliens 



of the country in which they are found, and no one motive for requiring it." 
Marshall, C.J., in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 
116, 144 (1812). It is to be noted that when this was written, Americans al- 
ready enjoyed extraterritorial rights in some countries. See p. 15 et seq. infra. 

10 "So long as we know no more of international sovereignty than that 
it is equivalent to independence, it will be vain to try, often as the attempt 
has been made, to deduce the answers to these questions from sovereignty 
itself; it is precisely in reconciling the independence of different authorities, 
in the circumstances in which the territories, ships and persons subject to 
them may be placed, that the difficulties arise." 1 Westlake, International 
Law, 237 (1904). Brierly observed that "* * * [Sovereignty is merely a 
term that we find convenient when we wish to refer collectively to a number 
of particular powers that states have traditionally claimed for themselves 
the right to exercise." Brierly, op. cit. supra, note 7, at 350. 

11 "There is general agreement that a state is primarily interested in 
events that affect its own safety, public order, and the integrity of its 
social system; that is, the distribution of values among those who, by 
virtue of citizenship or residence, identify themselves with a particular 
community and seek the protection of its laws." Katzenbach, "Conflicts on an 
Unruly Horse: Reciprocal Claims and Tolerances in Interstate and Interna- 
tional Law," 65 Yale L.J. 1087, 1133 (1956). See also Donnedieu de Vabres, 
Les Principles Modemes de Droit Penal International 11-13 (1928). 



5 

as well as its nationals, should be respected. This is so commonly 
understood that both look first to the territorial state for protec- 
tion of their persons and property and for the rules by which they 
govern their own conduct. Respect for law and order may well re- 
quire that all who commit like offenses in the same place be tried 
in the same courts under the same law. 12 Again, elementary no- 
tions of fairness — and of personal liberty — may be violated if an 
individual is held subject to the criminal law of any state other 
than that which he is in, even a state of which he is a national. 13 
Conversely, charges of unfairness toward an alien on grounds of 
lack of notice are in part met by the consideration that, since he 
was aware that he was subject to the local law, he should have in- 
formed himself of its prohibitions. Lack of sympathy for, or 
understanding of, local attitudes reflected in local law may affect 
the alien's conduct, but should not be confused with lack of notice. 
Anglo-American adherence to the territorial principle ap- 
parently has its roots in considerations of purely domestic law 
stemming from the early status of jurors as witnesses as well as 
triers of issues of fact. 14 At common law, venue was laid at the 
place of the crime 15 and the right to be tried where the crime was 
committed is still a fundamental protection accorded the accused. 16 
By the same token, perhaps the most persuasive argument for the 
territorial principle is that trial at the place of the crime is es- 
sential to the effective administration of justice. This argument is 
based on such factors as investigation, availability and attendance 
of witnesses, and production of evidence. All of the considera- 
tions which bear upon venue in domestic law are pertinent. Trial 



12 Westchester County v. Ranollo, 187 Misc. 777, 67 N.Y. Supp. 2d 31, 
(City Ct, New Rochelle, 1946), 41 A.J.I.L. 690 (1947). 

18 It seems over dramatic to refer to "[T]he system of tying the entire 
criminal law of a country around the neck of a subject, and of making him 
liable to its operation in whatever part of the world he may be * * *." 
Lewis, Foreign Jurisdiction and the Extradition of Criminals 29 (1859). 
But see American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) ; 
Bar, International Law, 631, 662 (Gillespie transl., 1883). 

" Cook, "The Logical and Legal Bases of the Conflict of Law," Selected 
Readings on Conflict of Laws, 71, 74 (1956) ; Berge, "Jurisdiction and the 
Territorial Principle," 30 Mich. L. Rev. 238, 239-240 (1931). 

16 "At common law venue was laid at the 'place' of the crime and * * * 
venue merged into jurisdiction and joined forces with sovereignty." Katzen- 
bach, op. cit. supra, note 11, at 1141. 

16 Travis v. United States, 364 U.S. 631 (1961). 



at a distance may, moreover, cause delays and thus introduce 
another element of unfairness to the accused. 17 

These considerations emphasize the legitimate concern of the 
territorial state with activities taking place within its territory 
and suggest that its primary competence to apply its criminal law 
should be respected. States are moved to exercise jurisdiction 
over acts taking place within their territory not primarily be- 
cause they take place there — though that may be the rationaliza- 
tion — but because, since they take place there, they affect the 
primary interests of the state or of its citizens. 

This is far from saying, however, that only the territorial state 
can have such interest and competence, or even that in every case 
they are primary. A state is too concerned with the activities 
abroad of its private citizens, its representatives and its armed 
forces; with its foreign trade and commerce and the foreign in- 
vestments of its citizens ; with the flow of the means of payment ; 
with the gathering and dissemination of information; with, in 
short, everything which affects its position in the world, not to be 
vitally interested in many matters occurring beyond its borders. 18 
Geographical isolation, which may have been a factor in the 
traditional Anglo-American adherence to the territorial principle, 
no longer protects a state from the impact of acts outside its 
borders. The result has been, and is, increasing pressure by in- 
dividual states to extend the application of their law to activities 
taking place abroad. 19 



17 Donnedieu de Vabres, op. cit. supra, note 11, at 11. 1 Pitt Cobbett's 
Cases on International Law 44, (5th ed., Grey, 1931). Lewis, Foreign 
Jurisdiction and Extradition of Criminals 30 (1859). 

18 "Within the world community, methods of policy prescription and ap- 
plication are territorially organized within a framework of separate 
sovereignties. But the values that states seek to achieve jointly and severally 
as well as the means of achievement are not so easily related to geography. 
Policy is conceived in functional terms, and the basis of power — persons and 
wealth — move across state lines with relative ease." Katzenbach, op. dt. 
supra, note 11, at 1151, note 11, at 1095. 

19 "In earlier days, when there may have been an attempt to delimit 
transactions, to assign them to exclusive regulating jurisdictions, and, at 
the same time, when there was perhaps less felt need and less energy for 
the enforcement of regulations beyond geographical boundaries, Locus regit 
actum was a perfectly rational working principle, both as an explanation of 
the assertion of jurisdiction and as a restraint on the undue extension of 
jurisdiction." Trautman, op. cit. supra, note 5, at 315. 



In reviewing the context in which the status of forces problem 
arises, it is useful to consider the efforts of states to extend the 
reach of their laws and to resist such efforts by other states. It 
should be borne in mind, however, that the claim of a receiving 
state to try a member of a visiting armed force involves no effort 
to extend the reach of its law; its claim is rooted in the terri- 
torial principle in its simplest, geographical sense. The sending 
state resists invocation of the territorial principle because it be- 
lieves other factors outweigh those which reinforce the territorial 
principle and claims the right to apply its law extraterritorially 
to its troops. 

States moved to extend the range of application of their crimi- 
nal law have asserted jurisdiction that is in substance extra- 
territorial, without acknowledging its essentially extraterritorial 
character, by expansion of the territorial principle. It has been 
pointed out that improvements in transportation and communica- 
tion facilities and the increasing complexity of criminal acts re- 
quired and justified such expansion. Courts and legislatures have 
responded ; courts have interpreted statutes punishing crimes com- 
mitted in the state to include situations in which the crime took 
place only partly within the state, and legislatures have partici- 
pated in expanding the principle through statutes broadening the 
definitions of specific crimes, i.e., larceny, to include possession 
within the state of goods stolen outside. Theories regarding the 
nature of and locus of crime, e.g., the French principle of 
indivisibilite and connexite, have been formulated or developed in 
aid of the process. Jurisdiction on the objective territorial prin- 
ciple relating to crimes begun outside but consummated within a 
state has been more widely asserted than on the subjective prin- 
ciple relating to crimes begun within a state but consummated 
outside. This is understandable because the former centers on the 
impact of criminal acts, the latter on the intention with which 
acts are undertaken. Assertions based on either principle are, 
however, recognized as valid. Generally, a criminal engaged in 
exporting crime may be called to account in either the state from 
or to which he exports. Jurisdiction has been extended to cover 
participation within a state in a crime committed abroad, even 
though participation is, in domestic law, frequently treated as a 
separate crime. Jurisdiction has even been asserted with respect 



8 

to an unsuccessful attempt outside a state to commit a crime 
within that state. 20 

The effort of states to extend the application of their laws to 
situations in which the territorial link is so tenuous suggests a 
need to protect the state and its citizens, regardless of where the 
acts prejudicing their interests take place. The motivation is 
sufficiently compelling to lead states to assert jurisdiction which 
is explicitly extraterritorial. The contrary effort to enshrine the 
territorial principle as the exclusive basis of jurisdiction never 
prevailed. 21 

Under the traditional analysis, assertions of extraterritorial 
jurisdiction are rationalized under the headings of the nationality, 
protective, passive personality and universality principles — to list 
them in the declining order of their acceptability. Such an 
analysis of problems of extraterritorial jurisdiction in terms of 
these principles can be most misleading for it suggests that the 
only relevant inquiry is whether there is a discernible link to the 
state asserting jurisdiction. An inquiry so limited fails to take 
into account that a balancing of the interests of states, not the 
interest of a single state, should determine the propriety of an 
assertion of jurisdiction. This type of analysis also fails to place 
proper emphasis on the self-restraint which states in fact exercise 
in asserting extraterritorial jurisdiction. 22 



80 Articles 17 and 18, Restatement, Foreign Relations Laiv, pp. 49, 52. 
Restatement (Second), Conflict of Laws, sec. 43 f, comment h (Tent. Draft 
No. 3, 1956) ; Harvard Research, Crime, supra, note 2, at 480-508. 29 
A.J.I.L., Supp., pt. II, 480-508; Trautman, op. cit. supra, note 5, at 315-321; 
Katzenbach, op. cit. supra, note 11, at 1142. 

81 1 Hyde, International Law 726 (2d ed. 1947) ; 2 Moore, International 
Law 225 (1906). 

The prevailing view was stated in the Lotus case, supra, note 3, at 20: 
"Though it is true that in all systems of law the principle of the territorial 
character of criminal law is fundamental, it is equally true that all or 
nearly all these systems of law extend their action to offenses committed 
outside the territory of the State which adopts them, and they do so in 
ways which vary from State to State. The territoriality of criminal law, 
therefore, is not an absolute principle of international law and by no 
means coincides with territorial sovereignty." 

88 Mr. Justice Jackson, in Lauritzen v. Larsen, 345 U.S. 571 (1953), in- 
volving the reach of the Jones Act, put the point admirably, saying, at 581 
et seq: 

"[T]he virtue and utility of sea-borne commerce lies in its frequent 

and important contacts with more than one country. If, to serve some 

immediate interest, the courts of each were to exploit every such contact 



9 

The link between a state and an isolated occurrence may be so 
insubstantial as in itself to raise a due process or denial of justice 
question. The link may, however, be inherently adequate and the 
assertion of jurisdiction nevertheless objectionable because of the 
conflicting interests of other states. A major consideration is 
whether the conduct is offensive to the law of all the states in- 
volved, or is permitted, protected, or even compelled by the law 
of the state in which the act or acts occurred or of which the ac- 
cused is a national, or the like. It is one thing for Belgium to 
acquiesce in the United States' trying an American sailor for 
murder committed on an American ship at anchor in a port on 
the Congo River 250 miles from the sea, 23 and another for 
England to acquiesce when an American court orders a British 
corporation to reconvey patents to an American corporation in 
contradiction of a contractual obligation to a second British 
corporation. 24 It is one thing for Brazil to acquiesce in the United 
States' trying an American for defrauding a United States 

to the limit of its power, it is not difficult to see that a multiplicity of 
conflicting and overlapping burdens would blight international carriage 
by sea. Hence, courts * * * have generally deferred to a non-national or 
international maritime law of impressive maturity and universality. It 
has the force of law not from extraterritorial reach of national laws, 
nor from abdication of its sovereign powers by any nation, but from ac- 
ceptance by common consent of civilized communities of rules designed 
to foster amicable and workable commercial relations. 

"International or maritime law in such matters as this does not seek 
uniformity and does not purport to restrict any nation from making and 
altering its laws to govern its own shipping and territory. However, 
it aims at stability and order through usages which considerations of 
comity, reciprocity and long-range interest have developed to define the 
domain which each nation will claim as its own. Maritime law, like our 
municipal law, has attempted to avoid or resolve conflicts between 
competing laws by ascertaining and valuing points of contact between 
the transaction and the states or governments whose competing laws 
are involved. * * * [I]n dealing with international commerce we can- 
not be unmindful of the necessity for mutual forbearance if retaliations 
are to be avoided; nor should we forget that any contact which 
we hold sufficient to warrant application of our law to a foreign 
transaction will logically be as strong a warrant for a foreign country 
to apply its law to an American transaction." 
23 United States v. Flores, 289 U.S. 137 (1933). 

** United States v. Imperial Chemical Industries, 100 F. Supp. 504 
(S.D.N.Y. 1951) ; 105 F. Supp. 215 (S.D.N.Y. 1952) ; British Nylon Spinners, 
Ltd. v. Imperial Chemical Industries, Ltd. [1952], 2 All E.R. 780; British 
Nylon Spinners v. I. CI. Ltd. [1954], 3 All E.R. 88. 



10 

Government corporation in Brazil, 25 another for, say, England to 
acquiesce in prosecution by some dictator of a British publisher 
for criticizing the dictator in a British newspaper. A valid 
generalization may be made that, for the reasons already sug- 
gested, the state in which the activity occurs has the primary 
interest, but at best it is only a generalization. Unhappily it is 
in precisely those instances in which their policies diverge the 
most that one state is most likely to seek to extend the application 
of its law and another state to resist that extension. Efforts of 
the United States to extend the reach of the Volstead Act 26 are 
illustrative. A nice question, more of policy than law, is raised, 
how far a state should seek to implement its own policies by 
extending the reach of its criminal law against the vigorous op- 
position of a state with contrary views. Fairness, in terms of 
notice, should be a factor. Here again, a generalization may be 
made that the fairness of an assertion of extraterritorial juris- 
diction varies, depending on whether the conduct is or is not com- 
monly regarded as criminal. Perhaps another generalization can 
be made that trial at the place where the acts occurred is more 
feasible, and hence likely to be fairer, than trial elsewhere. 

The right to assert extraterritorial jurisdiction over nationals 
for their acts abroad is often broadly affirmed, 27 but is used only 



86 "Clearly it is no offense to the dignity or right of sovereignty of Brazil 
to hold them for this crime against the government to which they owe 
allegiance." United States v. Bowman, 260 U.S. 94, 102 (1922). 

26 Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923). 

27 Article 30, Restatement, Foreign Relations Law, p. 87. Restatement 
(Second), Conflict of Laws, sec. 43 f(l)(c). (Tent. Draft No. 3, 1956); 
Harvard Research, Crime, supra, note 2, at 519. 

Mr. Justice Holmes, in American Banana Co. v. United Fruit Company, 
213 U.S. 347 (1909), indicated at least antipathy towards the exercise of 
jurisdiction based on nationality, but the issue was the interpretation of a 
statute rather than the reach of Congressional power, and the case was 
further complicated because the action complained of was that of the Costa 
Rican government. After noting that governments, including the British and 
American, had exercised jurisdiction so based, Mr. Justice Holmes said at p. 
346: "But the general and almost universal rule is that the character of an 
act as lawful or unlawful must be determined wholly by the law of the 
country where the act is done. * * * For another jurisdiction, if it should 
happen to lay hold of the actor, to treat him according to its own notions 
rather than those of the place where he did the acts, not only would be 
unjust, but would be an interference with the authority of another sovereign, 



11 

sparingly, particularly by those states in the common law tradi- 
tion. 28 It can be rationalized as derived from allegiance, as a kind 
of quid pro quo for the protection accorded citizens and activities 
abroad. The rationalization is more convincing where the offense 
is against the state itself, e.g., treason, than where it is against 
an individual, e.g., murder of robbery. 29 Cases of the latter type 
in which jurisdiction is asserted when nationality is the only 
link are relatively rare. Usually, there is a discernible impact on 
or activity in the state's territory, or the requirement may be im- 
posed that the offense be against a fellow national. Moreover, a 
willingness to defer to foreign law is frequently manifested, 
either by a requirement that the offense be punishable also by the 
lex loci delecti, or by recognizing the primary right of the terri- 
torial state to prosecute. 30 The nationality principle may, on the 
other hand, because of its respectability, be invoked in situations 
in which it is not strictly applicable, as in the case of seamen not 
nationals of the flag state or alien members of an armed force 
abroad. One can, of course, speak of assimilated nationality, in 
terms of temporary allegiance and a correlative claim to the 
state's protection abroad. The real justification and motivation is, 

contrary to the comity of nations, which the other state concerned justly 
might resent." See Steele v. Bulova Watch Co., Inc., 344 U.S. 280 (1952). 
Any doubt as to the American position with respect to the nationality 
principle was long since resolved. See United States v. Bowman, 260 U.S. 
94 (1922) ; Blackmer v. United States, 284 U.S. 421 (1932) ; Skiriotes v. 
Florida, 313 U.S. 69 (1941). 

28 Delaume, "Jurisdiction over Crimes Committed Abroad : French and 
American Law," 21 Geo. Wash. L. Rev. 173 (1952). 

29 See the court's discussion in United States v. Bowman, 260 U.S. 94, 98 
(1922), et seq., stating that statutes relating to crimes against private in- 
dividuals or their property are to be interpreted as not extending to "those 
committed outside of the strict territorial jurisdiction" unless Congress has 
expressly said so, but "the same rule of interpretation should not be 
applied to criminal statutes which are, as a class, not logically dependent 
on their locality for the Government's jurisdiction, but are enacted because 
of the right of the government to defend itself against obstruction, or fraud 
wherever perpetrated, especially if committed by its own citizens, officers or 
agents," and distinguishing American Banana Co. v. United Fruit Co., supra, 
note 28, as relating to "acts done by citizens of the United States against 
other such citizens in a foreign country." See also Trautman, op. cit. supra, 
note 4, at 312 and 324-326. 

80 See generally on the nationality principle and the limitations generally 
recognized in the laws of the several states, Harvard Research, Crime, 
supra, note 2, at 523-535; Trautman, op. cit. supra, note 5, at 327 et seq. 



12 

however, surely protection of those primary interests of a state; 
the operation of its merchant marine and its national security. 
If, as is normally the case, the seamen or members of the armed 
forces are nationals, this may be an added factor, but its real 
significance is likely to be in minimizing the conflicting interests 
of another state. 

The traditional analysis recognizes the competence of states 
explicitly to utilize the protective principle to reach the activities 
of aliens abroad when the security, territorial integrity, or in- 
dependence of the state is threatened. 31 The argument for the 
assertion of jurisdiction is essentially two-fold: (1) offenses of 



81 The arguments for and against the exercise of jurisdiction on the pro- 
tective principle are set forth in Brierly's Report on "Criminal Competence 
of States in Respect of Offences Committed Outside their Territory," Com- 
mittee of Experts for the Progressive Codification of International Law, 
and in DeVisscher's observations on the Report, Publications of the League 
of Nations, 1926, V. 7, p. 2, 20 A.J.I.L. (Spec. Supp.) 252, at 255 (1926), 
and in the Comments to Articles 7 and 8 of the "Draft Convention on 
Jurisdiction with Respect to Crime," Harvard Research, Crime, supra, note 
2, at 543-563. See also Article 33, Restatement, Foreign Relations Law, 
p. 94. 

Both the Draft Convention and the Restatement, Foreign Relations Law, 
Article 33, distinguish between the crimes of counterfeiting or falsification of 
the seals, currency, etc., and other crimes against the security, etc., of the 
state. Both recognize the propriety of the exercise of jurisdiction in the 
first class of offences (Article 8 of the Draft Convention and Article 33 of 
the Restatement), the Restatement noting that the United States has no 
laws relating to such crimes committed outside its territory, other than 34 
Stat. 100 (1906), 22 U.S.C. Sec. 1203 (1952), making it a crime to commit 
perjury before consular and diplomatic officials of the United States. Ex- 
change controls have created an offense comparable to counterfeiting, with 
respect to which a state may seek to exercise jurisdiction on the protective 
principle. See Public Prosecutor V. L., Supreme Court, Holland, Nov. 13, 
1951, [1951] Int'l. L. Rep. 206 (No. 48). 

The Draft Convention recognizes a qualified jurisdiction in the second 
class of cases also, providing in Article 7: "A State has jurisdiction with 
respect to any crime committed outside its territory by an alien against the 
security, territorial integrity or political independence of that State, pro- 
vided that the act or omission which constitutes the crime was not com- 
mitted in exercise of a liberty guaranteed the alien by the law of the place 
where it was committed." The Restatement is more guarded in that it both 
limits the jurisdiction to "conduct outside its territory that threatens its 
security as a State," and attaches a proviso that "the conduct is generally 
recognized as a crime under the law of states that have reasonably developed 
legal systems." See also Comment d to Article 33. 



13 

this nature threaten the vital interests of the state; and (2) the 
state in which they occur is likely to be indifferent regarding 
them even if they are criminal under its law. 32 Reliance on the 
principle in all except the narrow range of offenses indicated is, 
however, vigorously — perhaps too vigorously — resisted. It is sug- 
gested that the difficulty is not with the basic idea, which may 
indeed be the fundamental justification for any claim of jurisdic- 
tion. The difficulty is rather that a state may assert jurisdiction 
in reliance on the principle in circumstances in which the terri- 
torial state or a third state either believes it has a superior claim 
to assert jurisdiction or, of more importance, permits, protects, or 
even compels the acts of the accused. The basic difference be- 
tween counterfeiting a state's currency abroad and broadcasting 
attacks on its government from a foreign radio station is not 
in the threat to the state attacked. The threat may be of equal 
magnitude, and even of like kind, since counterfeiting can be 
utilized for political ends as well as private gain. The essential 
difference lies rather in the protection which countries such as 
our own properly accord to the right of free speech. 

Much the same may be said of assertions of jurisdiction on the 
passive personality principle, 33 predicated on the nationality of 



82 In Rex v. Holm and Rex v. Pienaar, Appellate Division, Union of South 
Africa, [1947] Ann. Dig. 91, 92, (No. 33) involving treason by nationals 
committed abroad, the court observed: "[S]o far as high treason committed 
by a subject is concerned, there exists no international custom or comity 
which debars a state from trying and punishing the offender no matter 
where the offence has been committed. The reason for this is clear: it is 
because high treason, committed outside the territory of the state concerned, 
is an offence only against such state. No other state is interested in 
punishing the offender, and the punishment of the offender by the state 
concerned does not encroach upon the rights of other states." 

The Court of Cassation of France held, in Re van den Plas [1955] Int'l. 
L. Rep. 205, that a Belgian national could be prosecuted in France for 
treasonable activities against Belgium committed in Belgium, under decrees 
which applied the French criminal law governing crimes against the security 
of the state to similar crimes against any state allied with France. 

"The argument for the passive personality principle may be stated 
simply: A state cannot be expected to tolerate the presence in its territory, 
unpunished, of an alien who, while abroad, committed an offense against 
one of its nationals which, if committed in its territory, would have been 
punishable under its law. The opposing argument was stated by Judge 
Moore in the dissenting opinion in the Lotus case, supra, note 3, at 92, 93: 
"It is evident that this claim is at variance not only with the principle 



14 

the victim, and the universality principle, 34 predicating jurisdic- 
tion simply on custody of the accused. If the assertion of jurisdic- 
tion on either of these grounds is objectionable, it is not because 
the state can have no discernible interest, though that interest is 

of the exclusive jurisdiction of a State over its own territory, but also 
with the equally well-settled principle that a person visiting a foreign 
country, far from radiating for his protection the jurisdiction of his 
own country, falls under the dominion of the local law and, except so far 
as his government may diplomatically intervene in case of a denial of 
justice, must look to that law for his protection. 

"No one disputes the right of a State to subject its citizens abroad 
to the operation of its own penal laws * * *. But the case is funda- 
mentally different where a country claims either that its penal laws 
apply to other countries and to what takes place wholly within such 
countries or, if it does not claim this, that it may punish foreigners for 
alleged violations, even in their own country, of laws to which they were 
not subject." 

The issue was raised in the well-known Cutting Incident, and Moore's Re- 
port, [1887] Foreign Relations, U.S. 751, is a brief in opposition to the 
assertion of jurisdiction by Mexico on this basis in that case. The issue was 
raised again but not decided in the Lotus case; Moore's dissent reflects his 
adherence to the views he had expressed forty years earlier. The wide- 
spread criticism of the decision in the Lotus case culminated in its being 
superseded in Article 11 of the Convention on the High Seas, 13 UST 2312, 
TIAS 5200. 

Both the Harvard Research, Crime, supra, note 2, at 579 and Article 
30(2) of the Restatement, Foreign Relations Law, p. 87, reject the passive 
personality principle. Cf. In re Gonzalez (Mexico, Sup. Ct.), [1931-1932] 
Ann. Dig. 151 (No. 79). The decision in The Attorney General of the 
Government of Israel v. Eichmann, 56 A.J.I.L. 805 (1962), and the comment 
that case provokes may well result in a change in attitudes toward the 
assertion of jurisdiction on the passive personality and universality 
principles. 

84 Moore reserved his bitterest contempt for the assertion of jurisdiction 
on this basis: "It is unnecessary to discuss this theory specifically, because 
* * * it is so rhapsodical and cosmopolitan in its character, and, while in- 
tended to be benevolent, is so impractical and intrusive, that it has never 
assumed a legislative guise." Moore's Report, [1887] Foreign Relations, 
U.S. 751. 

It has been observed, however, that "One could, however, reasonably 
maintain that there is a common interest in punishing 'crime,' irrespective 
of where it takes place, at least to the extent that there is agreement on 
what acts are 'criminal,' what is reasonable punishment and what constitutes 
fair procedure. The policy that crimes committed in one state are of no 
concern to others is a short-sighted and self-defeating one that, absent 
treaty, results only in harboring and protecting criminals." Katzenbach, op. 
cit. supra, note 11, at 1143. 



15 

likely to be less than overwhelming. After all, there is no bright 
line between these principles and the objective territorial prin- 
ciple, since impact is necessarily a vague concept and objection 
must come primarily from other factors. Conspicuous among 
these is not only whether the states involved take the same or 
different attitudes towards the accused's activities but also con- 
siderations of feasibility and fairness, which are always very 
much at the fore whenever extraterritorial jurisdiction is in 
issue. 35 

The greater the depth of inquiry into the problems of jurisdic- 
tion, the greater the appreciation of its many possible facets. A 
situation is rarely encountered which presents one facet in isola- 
tion. A cumulation of factors on one side must be balanced with 
those on the other. The only logical conclusion seems to be reached 
by the Restatement (Second), Conflict of Laws (Sec. 43 e), that 
a state has jurisdiction "* * * * [I]f its contacts with a person, 
thing or occurrence are sufficient to make it reasonable * * *." 
Certainly this is true in a problem so complex as that raised by 
visiting armed forces. 

EXTRATERRITORIALITY 

It is implicit in all discussions of the problem of criminal 
jurisdiction that jurisdiction in the sense of the right to enforce 
or execute the law is exclusively territorial. That jurisdiction in 
this sense, which includes the right to arrest, charge, try and 
punish, is, with only the narrowest exceptions, exclusively terri- 
torial has been recognized in a wide range of situations. 36 This 



86 "To the extent that the conduct itself is commonly considered criminal, 
jurisdiction amounts to no more than broadened venue and is objectionable 
only in so far as it might, on particular facts, put an unfair burden on 
defendant in terms of securing evidence, or possibly, be a less efficient place 
to prosecute for the same reason." Katzenbach, op. cit. supra, note 11, at 
1144. See also Harvard Research, Crime, 29 supra, note 2, at 580-581, 
quoting the opinions of Fusinato, Mercier and Donnedieu de Vabres; Article 
34, Restatement, Foreign Relations Law, p. 96. 

""Now the first and foremost restriction imposed by international law 
upon a State is that — failing the existence of a permissive rule to the con- 
trary — it may not exercise its power in any form in the territory of another 
State. In this sense jurisdiction is certainly territorial; it cannot be ex- 
ercised by a State outside its territory except by virtue of a permissive 
rule derived from international custom or from a convention." The Lotus 
Case, supra, note 3, at 18, 19. "It is, of course, universally accepted that no 
state can perform acts of sovereignty inside the territory of another, nor 



16 



precludes seizure of a foreign merchant vessel on the high seas, 37 
or in the territorial waters of another state, 38 or of a vessel of 
the captor's nationality in a foreign port. 39 The disability to 
exercise police power in a foreign territory 40 extends to trans- 
porting a prisoner through the territory of another state without 
its consent. 41 The right to exercise such jurisdiction within the 



can it send its officials on to foreign soil to arrest, try, or punish offenders 
there, whoever they may be or whatever they may have done." Beckett, 
"The Exercise of Criminal Jurisdiction Over Foreigners," 1925 Brit. Yb. 
Int'l. L. 44. See also Article 20, Restatement, Foreign Relations Law, p. 64. 

87 Chief Justice Marshall, in Rose v. Himely, 8 U.S. (4 Cranch) 241, 279 
(1808) said: "It is not easy to conceive a power to execute a municipal law, 
or to enforce obedience to that law, without the circle in which that law 
operates. A power to seize for the infraction of a law, is derived from the 
sovereign, and must be exercised, it would seem, within those limits which 
circumscribe the sovereign power." See also Church v. Hubbart 6 U.S. (2 
Cranch) 234 (1804). Cf. Hudson and Smith v. Guestier, 10 U.S. (6 Cranch) 
281 (1810). 

88 The Appollon, 22 U.S. (9 Wheat.) 362, 371 (1824) ; The Anne, 16 U.S. 
(3 Wheat.) 435 (1818) ; Mr. Clay, Sec. of State, to Mr. Vaugh, Brit. Min., 
Feb. 1828, M.S., Notes For. Leg. Ill 430, 2 Moore, International Law 21 
(1906). Charge Lindsay to Secretary Colby, No. 230, Apr. 12, 1920, M.S. 
Department of State, file 611.44 e 244/5, 2 Hackworth, International Law 
320 (1941). 

89 Mr. Buchanan, Secretary of State, to Mr. Wise, Minister to Brazil, Sept. 
27, 1845, M.S. Inst. Brazil, XV, 119, 2 Moore, International Law 4 (1906). 

*° In re Jolis, France, Tribunal Correctionnel d'Auesnes, [1933-1934] Ann. 
Dig. 191 (No. 77), and authorities cited in the editorial note on 192. For 
cases involving actions of police of the Canal Zone in the Republic of 
Panama, see 2 Hackworth, International Law, 311 (1941). The United 
States expressed its regrets when a Captain Haddock arrested a deserter in 
Canadian territory; the Captain was dismissed and the deserter discharged. 
Mr. Seward, Secretary of State, to Mr. Stanton, Secretary of War, April 
15, 1863, 60 Dom Ltr 231, 2 Moore, International Law, 370 (1906). 

41 [1877] Foreign Relations, U.S. 266, et seq., 2 Moore, International Law 
371 (1906). The Department of State later abandoned this supersensitive 
attitude and indicated that, although the United States reserved its right to 
object, it would ordinarily not do so. It could not, of course, undertake 
to prevent a prisoner from bringing habeas corpus and, absent a treaty or 
statute under which he could be held, he could obtain his liberty. 
Memorandum from the Department of State to the Japanese Embassy, Mar. 
2, 1907, M.S. Department of State, File 4904, 2 Hackworth, International 
Law 317, 318 (1941). See also Ed. Note, Transit in Extradition Cases, 
1 A.J.I.L., Part 1, 465 (1907); 4 Hackworth, International Law 216 (1942). 

F.E. Hall, "Foreign Powers and Jurisdiction of the British Crown," 81 
(1894) states that: "If a person on board a British ship commits a crime 



17 

territory of a state is in fact so jealously guarded and meticu- 
lously respected that a consul may not serve process unless the 
authorities of the state to which he is accredited interpose no 

objection. 42 

The principle that enforcement jurisdiction may, generally 
speaking, be exercised only within a state's own territory needs 
no elaborate justification. The effectiveness of a government 
would be undermined, and the security of individuals in their 
liberties threatened, if the law enforcement authorities of another 
state, deriving their powers from another source and exacting 
obedience to a foreign law, were free to operate at will within a 
state. One may regret that these considerations have been so 
persuasive as to lead states to deny even minimal assistance to 
other states in law enforcement, except within the narrow limits 
of the operation of extradition treaties; however, this is far 
from saying that it would be desirable for states to be permitted 
to exercise wide enforcement jurisdiction in other states. Ex- 
perience suggests, rather, that where enforcement jurisdiction is 
so exercised, by consent, not all the problems discussed above dis- 
appear — in fact, some of them become more acute and new prob- 
lems arise. 

Given their traditional adherence in theory and in practice to 
the territorial principle, some may consider it remarkable that the 
Anglo-American countries should have exercised extraterritorial 
jurisdiction, in the full — and common — sense of the term for so 
long and in so extensive an area. 43 No logical difficulty is pre- 
sented here — the extraterritorial jurisdiction was exercised by 
consent — but the Anglo-American position rests on policy con- 
on the high seas and is brought in custody into a foreign port, the terri- 
torial authorities will not interfere with his being kept in custody on board, 
nor with his being transferred to another vessel for conveyance to England." 
Cf. Regina v. Lesley [1858-1860], Bell's C. Cas. 220, 8 Cox Crim. Cas, 269 
(1860), where an indictment was sustained against the master of a British 
ship who contracted with the Chilean government to convey to Liverpool 
certain Chileans who had been ordered banished, for continuing to detain 
the prisoners on the high seas, after leaving Chilean waters. Chile was, of 
course, not the flag state nor could it claim territorial jurisdiction. For a 
criticism of the holding, see 2 Moore, International Law 215 (1906). See 
also Restatement (Second), Conflict of Laws, sec. 43 f (Tent. Draft No. 3, 
1956), which is expressly contra. 

* 2 2 Hackworth, International Law 119 (1941). 

* 3 See Justice Frankfurter's review of the history of extraterritoriality 
in his concurring opinion in Reid v. Covert, 354 U.S. 58-64 (1956). 



18 

siderations as well as logic. Factually it is accurate to say that 
they departed from the territorial principle when circumstances 
so dictated. 

The United States at one time exercised extraterritorial juris- 
diction in a broad belt of countries stretching from Morocco to 
Japan. It did so for varying periods in different countries but 
collectively for more than a century and a half. The first treaty 
conceding American extraterritorial jurisdiction was that of 1787 
with Morocco, 44 and Morocco was the last major country in 
which it was surrendered ; 45 but at one time the list included 
Borneo, China, Japan, Korea, Madagascar, Muscat, Morocco, 
Persia, the Samoan Islands, Siam, Tripoli, Tunis and Turkey. 46 

The scope of extraterritorial jurisdiction exercised by the 
United States — and correlatively, the immunity enjoyed by its 
nationals — varied from country to country. In China, from 1844 
to 1943, it was virtually complete, although for the redress of 
injuries suffered at the hands of a Chinese an American was 
dependent on local law. 47 The conduct of American nationals was 
subject to the regulation only of American law. 48 Since the reach 



M Hinckley, "American Consular Jurisdiction in the Orient," 18 (1906). 

* 6 On October 6, 1956. Young, "The End of American Consular Jurisdic- 
tion in Morocco," 51 A.J.I.L. 402 (1957). 

48 2 Moore, International Law 593 (1906). 

" The present comment will be limited largely to the China experience as 
adequate to illustrate the nature of the jurisdiction exercised and the 
problems to which the system gave rise. 

"The Treaty of Wang-Hiya of July 3, 1844, 8 U.S. Statutes at Large 
572, 1 Malloy, Treaties, Conventions, International Acts, Protocols and 
Agreements Between the United States and Other Powers 1776-1909, 196- 
202 (1910), the first Chinese- American treaty conceding extraterritoriality, 
provided, in Article XXI, that "* * * citizens of the United States who may 
commit any crime in China shall be subject to be tried and punished only 
by the Consul, or other public functionary of the United States, thereto 
authorized, according to the laws of the United States." Hinckley notes 
that Japan took the position that it had full sovereign power to prohibit 
the commission of any crime; that the provisions of the Japanese treaty 
related only to trial and punishment — to the remedy, not the obligation. It 
was United States policy to require its citizens to observe the regulations 
laid down by the local governments relating to security, good order, health 
and general welfare, and to enforce them in the consular courts, but other 
treaty powers took the position their nationals were subject only to their 
country's laws, and in 1879 were "indisposed to enforce quarantine restric- 
tions prescribed by Japan for preventing the bringing in of cholera from 
other countries of the Far East." But the United States cooperated. 



19 

of American criminal law is normally limited to American terri- 
tory, and under the federal system criminal law is largely state 
law, this raised a difficult problem, never quite satisfactorily 
solved. 49 Judicial authority was exercised primarily by the Ameri- 
can consuls, 50 but they were required in some instances to utilize 
the assistance of other citizens, and limited jurisdiction, original 
and appellate, was given the ministers. 51 

Consuls were authorized to issue warrants for the arrest of any 
American, 52 and the arrest was made by the consular marshal or, 
where none was available, by a special constable or marshal ap- 
pointed by the consul or by the local authorities at the request of 
the consul. It appears that Americans could, on the other hand, 
be arrested by the local police only in the act of committing 
flagrant crime ; that even then they could not be jailed by the local 
authorities, but had to be immediately turned over to their consul ; 
and that the dwelling, place of business or ship of an American 
could be entered to search for or arrest even native offenders, only 
with the assent of the consul and, if he thought necessary, only in 
the presence of a consular officer. 53 

The institution of protegees was never established in China. 

Hinckley, op. cit. supra, note 44, at 98. The Treaty of 1858 read: "* * * 
[C]itizens of the United States, either on shore or in any merchant vessel, 
who may insult, trouble or wound the persons or injure the property of 
Chinese, or commit any other improper act in China, shall be punished only 
by the Consul or other public functionary thereto authorized, according to 
the laws of the United States. Arrests in order to trial may be made by 
either the Chinese or the United States authorities." 1 Malloy, Treaties, 
Article XI, 211, 215 (1910). 

49 The first statute implementing the exercise of extraterritorial jurisdic- 
tion by the United States was that of 1848, 9 Stat. 276; a more comprehen- 
sive act was passed in 1860, 12 Stat. 72. There were several amendments, 
and these enactments were in 1878 consolidated in the Rev. Stat. Sees. 
4083-4130. 

60 There is reason to doubt such jurisdiction could now be constitutionally 
conferred on consuls, in view of the comments on In re Ross, 140 U.S. 453 
(1891) in Reid v. Covert, 354 U.S. 1 (1957). 

81 Rev. Stat. Sees. 4089, 4090, 4109, 4095, 4106, 4102, 4103. 

" Rev. Stat. 4087. 

58 Hinckley, op. cit. supra, note 44, at 103. The scope of the right of the 
Chinese police to arrest Americans, and of the correlative immunity of 
Americans from arrest by them, is not clearly spelled out in the treaties. 
It appears that the relative immunity of Americans from arrest by the 
Chinese police was fortified and extended by custom. See 2 Moore, Interna- 
tional Law 599 (1906). 



20 

Protection was, however, given and American jurisdiction as- 
serted not only with respect to citizens of the United States by 
birth or naturalization and native inhabitants of its insular 
possessions, but also with respect to seamen on American ships, 
whatever their nationality. At least limited protection seems also 
to have been accorded employees of American citizens. 64 

The century of American experience of extraterritorial juris- 
diction in China, although not without its defenders, 65 seems to 
be viewed by many as evidencing a dubious choice between two 
evils. Among the reasons which are said to have led to the in- 
sistence on extraterritorial privileges are: (1) The Chinese law 
of homicide was not sufficiently discriminating, and in dealing 
with foreigners the existing discriminations were not observed; 
(2) the system of punishment involved severe penalties and 
humiliations, without thought of reformation or deterrence except 
through fear and force, by such sanctions as death by slicing, 
decapitation and strangulation; (3) torture both of the accused 
and of witnesses was used, the accused being presumed guilty but 
no punishment being possible without a confession; (4) condi- 
tions in the prisons, used primarily for the detention of the ac- 
cused and of witnesses before trial, rather than for punishment, 
were intolerable, and many of the imprisoned died; (5) the prin- 
ciple of vicarious responsibility was applied, to the family, the 
town or other group, in criminal cases; (6) the administration of 



64 Hinckley, op. cit. supra, note 44, at 78, 85 ; 2 Moore, International Law 
588 (1906). 

66 Hinckley apparently viewed it as in the nature of a missionary enter- 
prise. His work, op. cit. supra, note 44, opens with the statement: "The 
extension of European domination throughout much of the orient has, in our 
own day, opened a prospect of wonderful development of eastern peoples in 
general civilization, in methods of government necessary for protection of 
life and property, and in conceptions of justice and of the utility and 
authority of courts of law. 

"Only one oriental nation, the Japanese, is thus far admitted actually to 
have assimilated enough of western jurisprudence to entitle its government 
to exercise full responsibility for the protection of foreigners within its 
territory." 

See also Denby, "Extraterritoriality in China," 18 A.J.I.L. 667, (1924) 
for a vigorous defense of the system. The author, a one-time minister to 
China, answers the argument sometimes made that traders in China in pre- 
treaty days did not demand extraterritorial privileges with the observation 
(p. 670) that "Foreigners sacrificed all personal considerations to secure 
permission to trade." 



21 

justice was in the hands of administrative officials, there being no 
separate judiciary, and was notoriously corrupt; and (7) there 
was a prejudice against foreigners. 56 

It is not surprising that the United States should have been 
reluctant to see its nationals subjected to a system of justice 
which had, or was said to have, these attributes. American extra- 
territorial jurisdiction in actual operation has, however, been 
criticized with perhaps equal vigor. The principal criticism was 
that in practice American law-breakers enjoyed immunity from 
punishment, at the same time that they demanded the most 
vigorous enforcement of Chinese law against such Chinese as 
offended against them. This is said to have produced great re- 
sentment among the Chinese and intensified their anti-foreign 
attitude. 57 



56 Williams, "The Protection of American Citizens in China : Extraterri- 
toriality," 16 A.J.I.L. 43; (1922) Quigley, "Extraterritoriality in China," 20 
A.J.I.L. 46 at 50 (1926). Quigley notes that on the Chinese side it was said 
that most foreigners did not understand Chinese legal procedure, in general 
the penalties imposed were no more severe than in European countries, 
torture was not applied to foreigners, and decisions involving foreigners 
were given in accordance with Chinese law. 

67 "The strongest plea for the abolition of extraterritoriality lies in the 
abuse of this privilege on the part of subjects of foreign Powers who use 
it as a cloak for illegal acts. The continued smuggling of opium and 
morphine into China is but a single example, although the most striking, of 
the wrong that is being done to China under the cloak of a foreign extra- 
territorial jurisdiction." Bishop, quoted in Quigley, op. cit. supra, note 56 
at 59. Burlingame, Minister to China, wrote the State Department with 
reference to the execution of one Buckley for murder: "Such men as * * * 
Buckley had so long escaped punishment that they had come to believe that 
they could take life with impunity. The United States authority was 
laughed at and our flag was made the cover for all the villains in China." 
[1864] Foreign Relations, U.S. Part 3, p. 400; Williams, charge d'affaires, 
wrote the following year: "Cases have already occurred in China of aggra- 
vated manslaughter, and even of deliberate killing of the natives by 
foreigners, whose crimes have been punished by simple fines or mere deporta- 
tion or short imprisonment; while foreigners strenuously insist on full 
justice when life is taken by the natives; or maiming with intent to kill." 
[1865] Foreign Relations, U.S. Part 2, p. 454. The Consul General at 
Shanghai wrote in 1871: "It would be difficult to say that the extra- 
territorial system is not often productive of injustice to the Chinese. * * * 
A few years ago the Viceroy at Nanking, in presenting a case on behalf of 
some poor boat people, whose vessel had been sunk by a foreign steamer, de- 
clared that the frequency of such accidents had so aroused the people that 
he feared they would endeavor to make reprisals should the foreign courts 



22 

It has been said that partial and lax law enforcement are in- 
herent characteristics of extraterritoriality. 58 Again, the assign- 
ment of judicial functions to consuls, untrained in the law, pri- 
marily concerned with protecting the interests of their nationals 
and occupied with other duties, has been pointed to as a funda- 
mental weakness of the system. 59 The inability of the consul to 

continue to refuse redress." [1871] Foreign Relations, U.S. 170; Williams, op. 
cit. supra, note 56, at 49. In 1904, an unoffending Chinese of good standing 
was thrown into the water by a group of drunken sailors, identified as 
Americans, and drowned, but no one was ever brought to justice. Williams 
says of this case that "A great deal of intense feeling was aroused in 
Canton * * * and the native and foreign press was very caustic in com- 
menting on this apparent breaking down of justice. The native press in 
particular contrasted the indifference of the American enforcement of the 
law in this case with the unusual energy displayed in demanding redress for 
crimes committed against foreigners by Chinese. The American government 
finally paid an indemnity of $1,500 to the family of the murdered man. But 
the feeling was only partially allayed; and in the case of the Lienchou 
murders a year later, when five Americans were killed, the Canton cor- 
respondent of the North-China Herald attributed the anti-American feeling, 
which was a partial cause of the crime, to the failure of justice in the case 
of the murder at Canton." Williams, op. cit. supra, note 56, at 50. 

68 "[T] here are strong reasons for expecting an indifferent administra- 
tion of the law under a system of extraterritoriality. A crime is an offense 
against society which society must punish. An aroused public opinion gives 
vigor to the enforcement of the law, demands adequate police protection 
and jail facilities and upholds the hands of the judiciary. With public 
opinion awakened the machinery of the law will operate smoothly; but 
when the public slumbers an inevitable inertia results. Under a system of 
extraterritoriality the injured society is powerless to apply punishment to 
foreigners who offend against it. Foreign officials must pass judgment upon 
them. There is no aroused public sentiment urging the foreign government 
to a vigorous enforcement of its laws. An indifference results, which is 
only increased by the element of racial prejudice." Williams, op. cit. supra, 
note 56, at 48, 49. 

The strongest of proponents of the territorial principle observed: "The 
privileged consular jurisdiction produces the desired effect of insuring the 
European against the dangers of a barbarous criminal and civil tribunal; 
but the advantages of an exemption from the natural system of territorial 
jurisdiction can only be purchased at the price of much countervailing evil. 
All foreign criminal jurisdiction, even that exercised by a civilized on the 
soil of an uncivilized nation, is a feeble and defective instrument, and the 
tendency of the privileged European jurisdiction in the Turkish Empire is 
stated, in general, to be the impunity of the European criminal." Lewis, 
Foreign Jurisdiction and the Extradition of Criminals, 16 (1859). 

■• "The first duty of a Consul is to protect the interests of his sovereign's 
subjects; it is scarcely consistent to add to that duty the task of adminis- 



23 

compel the attendance of witnesses or to punish for pre jury 
witnesses not of American nationality, and other limitations on 
his authority inherent in a jurisdiction based on nationality rather 
than territorial sovereignty was another defect of the system. 60 
The same limitation gave rise to inequality in the treatment 
accorded the nationals of the several powers exercising extra- 
territorial jurisdiction in China for the same acts. The small 
number of consuls made the prosecution of offenses committed at 
a distance from any consulate subject to the common shortcom- 

tering justice when a complaint is brought against that subject; and the 
duties of protection of a class and the administration of impartial justice 
between that class and others cannot but clash. Only too often is the 
verdict of the extraterritorial court a formula as of course, 'judgment for 
the defendant,' and the defendant has then every reason to be satisfied 
that he has an efficient consular service." Latter, quoted in Williams, op. cit. 
supra, note 56, at 53. 

"[I]n addition to his commercial functions, the consul of a treaty state 
performs the numerous roles not only of a judge sitting over civil and 
criminal actions instituted against his fellow nationals, of a coroner, 
registrar, probate judge, and police magistrate, but also that of an advocate 
in the court of the native defendant on behalf of his aggrieved fellow- 
national. * * * 

<<* * * They are unfitted for the task [of exercising judicial functions] 
for three principal reasons: (1) Their first duty is to protect the interests 
and persons of their nationals; (2) they are generally men not trained in 
the law; and (3) their national bias often creeps unconsciously into their 
action and decisions." Mah, "Foreign Jurisdiction in China," 18 A.J.I.L. 
676 (1924), at 685, 688. See also Williams, op. cit. supra, note 56, at 51, 52. 

60 «xhe jurisdiction of the ministers and consuls usually is limited to 
proceedings against persons of their own nationality. In this sense na- 
tionality operates as a limitation upon the jurisdiction; and in the same way 
the nationality of the plaintiff, or even of a witness, may, in certain 
contingencies, raise an obstacle to the effective exercise of jurisdiction." 
2 Moore, International Law, 600 (1906). 

"[T]he consular courts are empowered to take cognizance only of the acts 
of their own nationals. In short, their jurisdiction is personal. This defect 
conduces to the compromising of justice, because the court has no power to 
compel a witness of another nationality to testify. Nor has the court power 
to inflict punishment, either by fine or imprisonment, for perjury committed 
by a person of another nationality." Mah, op. cit. supra, note 59, at 688. 

"The United States consul at Kanagawa [Japan] having fined for con- 
tempt a British subject who, as a witness, refused to answer certain ques- 
tions, the British consul, to whom application was made for the enforcement 
of the penalty, refused to require either the payment of the fine or to im- 
pose the alternative of imprisonment for non-payment * * *." 2 Moore, 
International Law, 604 (1906). 



24 

ings of trials remote from the place where the crime was com- 
mitted. 61 The lack of prison facilities on occasion led to the free- 
ing of convicted criminals. 62 

The foregoing review of our experience of exercising extra- 
territorial jurisdiction in China is not intended to suggest that 
the exercise of court-martial jurisdiction over our troops abroad 
is subject to the same criticisms. It does, however, warn that 
there are inherent difficulties in any exercise of extraterritorial 
jurisdiction which can, at best, only be minimized. 



81 Minister Reed is quoted as saying: "The foreigner who commits a rape 
or murder a thousand miles from the seaboard is to be gently restrained, 
and remitted to a Consul for trial, necessarily at a remote point, where 
testimony could hardly be obtained or ruled on." Williams, op. cit. supra, 
note 56, at 53, quotes from a pamphlet of the Chinese National Welfare 
Society in America, "The Shantung Question, A Statement of China's 
Claims, etc.," (1919), p. 164: 

"But if the latter [the consul] is stationed, as he generally is, at a great 
distance from the scene of the crime, the accused is practically assured of his 
liberty because the personal appearance at court of native witnesses is 
made most difficult, if not impossible, owing to the poor communications, and 
the time and expense required to make the trip. Insufficiency of evidence 
has too frequently resulted in the denial of justice." 

63 Minister Reed, referring to the situation after fourteen years of the 
exercise of extraterritorial jurisdiction in China, said: "We extort from 
China 'ex-territoriality', the amenability of guilty Americans to our law, 
and then we deny to our judicial officers the means of punishing them. There 
are consular courts in China to try American thieves and burglars and 
murderers, but there is not a single jail where the thief or burglar may be 
confined. * * * I consider the exaction of 'ex-territoriality' from the Chinese, 
so long as the United States refuse or neglect to provide the means of 
punishment, an opprobrium of the worst kind. It is as bad as the coolie or 
the opium trade." Sen. Doc. 30, 36th Cong., 1st Sess., p. 355, Williams, 
op. cit. supra, note 56, at 49. 



CHAPTER II 
IMMUNITIES 

In making a determination of a jurisdictional problem, it is not 
enough to weigh a state's claim to assert jurisdiction in terms of 
the accepted bases of jurisdiction. Claims for immunity, predi- 
cated either on the status of the accused as an agent of a state or 
the official character of the acts constituting the offense must also 
be taken into account. A member of an armed force is an agent 
of the state which he serves, and many of his acts are done in 
the performance of his official duties. A common assertion is that, 
as an agent of the state, he is immune from the jurisdiction of 
any other state, and that in any event his acts done in the 
performance of duty cannot be the basis of prosecution by any 
other state. Before discussing the validity of these claims di- 
rectly, a review of the situation with respect to the immunities 
accorded other agents of a state is desirable. In any inquiry in 
this area, however, it should be borne in mind that jurisdiction 
is the norm, immunity the exception, and the existence of an 
immunity must be affirmatively demonstrated. There is, more- 
over, a discernible tendency to restrict the scope of even the im- 
munities recognized. 

The immunity of states is still widely accepted * but application 
of the doctrine has been limited — in particular in the commercial 
transaction field. The basis of state immunity has been attacked 
on the ground that neither the equality and independence of 
states nor their dignity requires they be exempt from normal 
judicial processes with respect to their activities in foreign states, 
especially if in areas of similar activities the state submits to the 
jurisdiction of its own courts in respect to claims brought 
against it. 2 



1 See the Comment to Article VII of the Draft Convention on the 
Competence of Courts in Regard to Foreign States, Harvard Research in 
International Law, 26 A.J.I.L. (Supp.) 727 (1932). 

8 "Thus no legitimate claim of sovereignty is violated if the courts of a 
state assume jurisdiction over a foreign state with regard to contracts 



26 

PERSONAL IMMUNITY 

Certain agents of a foreign state, notably those with diplomatic 
status, enjoy personal immunity from the jurisdiction of the terri- 
torial state. The fiction of extraterritoriality at one time contrib- 
uted to shaping diplomatic immunities. It seems unnecessary to 
point out at this juncture the many facets of the law of diplomatic 
immunities which are inconsistent with such a premise. 3 This is 
not to say either that there are no rules with respect to diplomatic 
immunities which do not owe their origin at least in part to the 
extraterritorial concept or that it is now entirely without in- 
fluence. Again, respect for the sending state has been and con- 
tinues to be a factor. 4 Emphasis has, however, shifted to the need 
for protection of diplomats in the performance of their functions. 
This is not, of course, a rule of law, but a policy consideration 



concluded or torts committed in the territory of the state assuming jurisdic- 
tion. On the contrary, the sovereignty, the independence, and the equality 
of the latter are denied if the foreign state claims as a matter of right — as 
a matter of international law — to be above the law of the state within the 
territory of which it has engaged in legal transactions or committed acts 
entailing legal consequences according to the law of that State." Lauter- 
pacht, "The Problem of Jurisdictional Immunities of Foreign States," 1951 
Brit. Yb. Int'l. L. 220, 229. See also 1 Lauterpacht-Oppenheim, International 
Law, 272, 273 (8th ed., 1957). 

8 "The Committee does not consider that the conception of exterri- 
toriality, whether regarded as a fiction or given a literal interpretation, 
furnishes a satisfactory basis for practical conclusions. In its opinion, the 
one solid basis for dealing with the subject is the necessity of permitting 
free and unhampered exercise of the diplomatic functions and of maintaining 
the dignity of the diplomatic representative and the State which he repre- 
sents as the respect properly due to secular traditions." "League of Nations, 
Committee of Experts for the Progressive Codification of International Law," 
Questionnaire No. 3, January 1926, 20 A.J.I.L., (Spec. Supp.) 148, 149 
(1926). 

* "The immunities which have been conceded to the persons and things 
above mentioned are prompted by considerations partly of courtesy and 
partly of convenience so great as to be almost equivalent to necessity. The 
head of the state, its armed forces, and its diplomatic agents are regarded 
as embodying or representing its sovereignty, or in other words, its char- 
acter of an equal and independent being. They symbolize something to 
which deference and respect are due, and they are consequently treated with 
deference and respect themselves." Hall, International Law, 218-19 (8th ed., 
Higgins, 1924). See also Pruess, "Capacity for Legation and the Theoretical 
Basis of Diplomatic Immunity," 10 N.Y.U.L. Rev. 170, 182 (1932). 






27 

which is shaping the law not only with respect to diplomats but 
with respect to other officials of a state. 5 

There is less than complete agreement regarding which agents 
of foreign states are entitled to personal immunity. The immunity 
of heads of state, 6 foreign ministers, 7 ambassadors and others 
with diplomatic status and their families is universally recognized, 
but that of the administrative and service staff of a diplomatic 
mission is at best doubtful. 8 Again, a consul has no general im- 



8 Comment a to Article 76 of the Restatement, Foreign Relations Law, 
p. 252, reads: "The most widely accepted rationale for diplomatic immunity 
is that it assures governments that they will not be hampered in their 
foreign relations by harassment of, or interference with, their diplomatic 
representatives. Protection of the performance of diplomatic functions re- 
quires that those charged with such performance not be subject to intimida- 
tion by persons in the receiving state. Furthermore, states recognize that 
immunity of their diplomatic personnel in other states may be conditioned 
upon a reciprocal grant of immunity to such personnel of the other states." 
See also Comment b to Article 77 at p. 257; Ogdon, "The Growth of Purpose 
in the Law of Diplomatic Immunity," 31 A.J.I.L. 449 (1937). 

6 Traditionally, the immunity is referred to as that of foreign sovereigns, 
but it seems clear that it is equally available to any head of state. 1 Hyde, 
International Law, 817 (2d ed. rev. 1945). See, with respect to the immunity 
of a sovereign, Hall, op. cit. supra, note 4, at 220; see generally, Article 69, 
Restatement, Foreign Relations Law, p. 219. 

7 "No precedents have been found dealing with the immunity of the head 
of a government or that of a foreign minister, but in view of the extensive 
immunity granted to diplomatic officials * * * it is to be presumed that a 
foreign minister while on an official visit to the government of the terri- 
torial state has an equal immunity, both as to official and as to private acts." 
Reporters' Notes 1 to Article 69, Restatement, Foreign Relations Law, p. 222. 

8 Article 37 of the Vienna Convention on Diplomatic Relations, signed 
April 18, 1961, accords immunity to members of the administrative and 
technical staff of a mission and their families, if they are not nationals of 
or permanently resident in the receiving state; members of the service staff 
who are not nationals of or permanently resident in the receiving state are 
accorded immunity in respect of acts performed in the course of their duties. 
See also The Report of the Sub-Committee (Diena), League of Nation's 
Committee of Experts for the Progressive Codification of International Law, 
20 A.J.I.L. (Spec. Supp.) 163 (1926) ; and Gutteridge, "Immunities of the 
Subordinate Diplomatic Staff," 1947 Brit. Yb. Int'l. L. 148. Administrative 
and service personnel are accorded immunity in the United States by statute 
(Title 22 U.S.C., Sees, 252-54) subject to certain reservations, but in 
according such immunity the United States seemingly goes beyond its obliga- 
tion under international law. Articles 76 and 77 of the Restatement, Foreign 
Relations Law, p. 252, 255, and Comment c to Article 76 and Comments 
(e) through (g) to Article 77, p. 253 and 259-61. 



28 

munity, but immunity only with respect to his official acts 9 or 
perhaps such immunity as is necessary for the proper perform- 
ance of his functions. 10 The great majority of the civilian em- 
ployees of the United States do not enjoy personal immunity 
when abroad. 11 

Personal immunity for one agent of a foreign state clearly 
cannot be inferred from the existence of such immunity with re- 
spect to another agent in a different category. There are abundant 
reasons why this should be so. In so far as personal immunity 
derives from respect for the sending state, it is relevant that the 
dignity of that state is much more significantly engaged where the 
agent is the Head of State, the Foreign Minister or an Ambassa- 
dor than where he is a minor employee of a mission. 

Diplomatic immunities in particular have a long history, which 
accounts for the present scope of these immunities perhaps more 
than does any theory or combination of theories, which have some- 
thing of the quality of rationalization after the fact. Further, and 
of more importance, the nature of a diplomat's functions 12 make 



9 Article 21, Draft Convention on the Legal Position and Functions of 
Consuls, Harvard Research, op. cit. supra, note 1, at 338; Beckett, "Con- 
sular Immunities," 1944 Brit. Yb. Int'l. L. 34. See Lee, Consular Law and 
Practice (1961) for a comprehensive treatment of the status of Consuls. 

10 Article 85, Restatement, Foreign Relations Law, p. 287. 

11 "Questions have been raised before this committee about the diplomatic 
status of State Department and other civilian officials. In the first place, 
it should be made clear that the great majority of State Department person- 
nel overseas do not have immunity from local criminal jurisdiction. On the 
contrary, most United States civilian officers and employees abroad, in- 
cluding those of other governmental agencies, as well as the State Depart- 
ment, have neither immunity nor the special guarantees provided United 
States servicemen by the Status of Forces Agreement. They are completely 
subject to local criminal jurisdiction, whether on duty or off duty." Deputy 
Under Secretary Murphy, Hearings on H.J. Res. 309 Before the House 
Committee on Foreign Affairs, 84th Cong., 1st Sess. 167 (1955). See, how- 
ever, the Vienna Convention on Diplomatic Relations, supra, note 8. 

12 Article 3 of the Vienna Convention on Diplomatic Relations, supra, 
note 8, defines the functions of a diplomatic mission as consisting inter 
alia in : 

"(a) representing the sending State in the receiving State; 

(b) protecting in the receiving State the interests of the sending State 
and of its nationals, within the limits permitted by international law; 

(c) negotiating with the Government of the receiving State; 

(d) ascertaining by all lawful means conditions and developments in 



29 

a peculiarly compelling case for personal immunity. He is not 
simply physically in the country, but intimately involved with its 
government. Basically, his functions are to acquire information 
and to do all he legitimately can to shape attitudes and events 
most favorably to his own state. To do this, he must inquire, 
suggest, persuade, negotiate, and bargain; all of which involve 
direct relations with the foreign government. The subtleties of 
his functions make subtle pressures upon him possible, and hence 
call for a maximum of protection from those pressures, even those 
exerted indirectly, through his family or, perhaps, his domestic 
servants. Also, the protection must be adequate to the situation in 
the unfriendliest foreign country, 13 and it is obviously impractical 
to vary its scope depending on the prevailing climate of particular 
bilateral relationships. All this suggests that protection of the 
diplomatic function, without more, justifies complete personal im- 
munity for diplomats and their associates. The process of ac- 
creditation and particularly the right to declare a diplomat per- 
sona non grata not only reflect and emphasize the nature of the 
diplomat's relationship with the state to which he is accredited, 
but provide something of a substitute sanction for those supplied 
by the criminal law. This is not to say that there is no functional 
basis for according immunity to other agents of a foreign state 
than diplomats, but that the status of each class must be sepa- 
rately judged in the light of the particular circumstances. 

The importance of these considerations, and the present disposi- 
tion to restrict the immunities of those in comparable categories 
but the scope of whose immunities is not firmly established, is 
revealed in the history of such international organizations as the 
League of Nations and the United Nations. Two classes of in- 
dividuals are involved, representatives of member states and 
officials of the organizations, and their status differs. Representa- 
tives of members who have diplomatic rank, even though not 
accredited to a sovereign state, have been said to enjoy diplomatic 



the receiving State, and reporting thereon to the Government of the send- 
ing State; 

(e) promoting friendly relations between the sending State and the 
receiving State, and developing their economic, cultural and scientific 
relations." 

18 "[0]ur diplomatic personnel are often required to live and work in 
hostile lands where immunity is essential to their work and to their safety." 
Deputy Under Secretary Murphy, Hearings, supra, note 11, at 167. 



so 

privileges and immunities under international law. 14 This is not 
unchallenged, 15 however, and in any case there is doubt regarding 
the officials to be included in this class. Officials of international 
organizations, which lack the capacity for legation, appear not to 
be entitled to diplomatic privileges and immunities in the absence 
of treaty, 16 and the United States is said to have been particularly 
adamant in its adherence to this view. 17 

The Covenant of the League provided in Article 7 that "Repre- 
sentatives of the Members of the League and officials of the 
League shall enjoy diplomatic privileges and immunities. ,, 18 The 
Covenant, in according full diplomatic privileges and immunities 
to representatives of members and officials of the League, followed 
a pattern established in many prior treaties. The shift to the 
functional approach to the problem of immunities, with a re- 
sulting limitation in their scope, is reflected in the corresponding 
provision of the Charter of the United Nations. Art. 105, para- 
graph 2, provides : "Representatives of the Members of the United 
Nations and officials of the Organization shall similarly enjoy 
such privileges and immunities as are necessary for the inde- 
pendent exercise of their functions in connection with the Organi- 
zation." The General Convention on Privileges and Immunities 
of the United Nations, 19 suggests that in the view of the General 
Assembly the necessary immunities from criminal jurisdiction of 
both representatives of members and officials are limited. 20 

The United States has not ratified the General Convention, and 



14 Preuss, "Diplomatic Privileges and Immunities of Agents Invested with 
Functions of an International Interest," 25 A.J.I.L. 694, 699 (1931) ; Kunz, 
"Privileges and Immunities of International Organizations," 41 A.J.I.L. 828, 
843 (1947). 

16 Article 89, Restatement, Foreign Relations Law and Comment b thereto, 
p. 311. 

10 Preuss, op. cit. supra, note 14, at 695. 

17 Preuss, "The International Organizations Immunities Act," 40 A.J.I.L. 
332, 333 (1946), citing the opinion given by the Department of State to the 
British Embassy, 1 Foreign Rel. U.S. 414 (1929). See also Reporters' 
Note 1 to the Introductory Note to Topic 4 of Chapter 4 of the Restatement, 
Foreign Relations Law, p. 292. 

18 For the manner in which this was implemented, see Preuss, op. cit. 
supra, note 14, at 699; and Kunz, op. cit. supra, note 15, at 844. 

19 1 U.N. Treaty Series 15 (1950). 

20 See Articles V, VI and X. Members are placed under a duty to waive 
the immunities accorded where they would impede the course of justice and 
can be waived without prejudice to Members interests. 



31 

in the host state the immunities of representatives of members 
and officials of the United Nations depend primarily on the Head- 
quarters Agreement 21 and the International Organizations Im- 
munities Act. 22 The Headquarters Agreement goes beyond the 
requirements of the Charter and grants to resident representa- 
tives and certain members of their staffs "the same privileges and 
immunities, subject to corresponding conditions and obligations, 
as it accords to diplomatic envoys accredited to it." 23 On the 
other hand, the Headquarters Agreement makes no reference to 
officials of the United Nations, and their immunity from criminal 
jurisdiction. Under the International Organizations Immunities 
Act it is strictly limited to that for official acts. 24 Moreover, not 
only are the benefits accorded by the Act subject to the require- 
ment that the President prescribe the organization, and to the 
President's power to withdraw, condition or limit such benefits, 25 
but the Secretary of State is given power to declare any individual 
persona non grata. 26 

The limited immunity of United Nations officials under the Act 
was further restricted in the Ranollo Case, a prosecution against 
the chauffeur of the Secretary-General for speeding while driving 
the Secretary-General to a conference with officials of the City of 
New York on United Nations business. 27 The court indicated it 
would have accepted as conclusive a suggestion of the Department 



21 61 Stat. 760 (1947), TIAS No. 1676. 

22 59 Stat. 671 (1945), 22 U.S.C. Sec. 288d (1958). On the issue of 
whether the Act implements completely the obligations of the United States 
under the Charter, see Preuss, op. cit. supra, note 14, at 341. 

28 Section 15. 

24 Section 288 (d) (b) reads: "Representatives of foreign governments 
in or to international organizations and officers and employees of such 
organizations shall be immune from suit and legal process relating to acts 
performed by them in their official capacity and falling within their func- 
tions as such representatives, officers or employees except insofar as such 
immunity may be waived by the foreign government or international 
organization concerned." Section 288 e (c) adds that "No person shall, by 
reason of the provisions of said sections, be considered as receiving 
diplomatic status or as receiving any of the privileges incident thereto 
other than such as are specifically set forth herein." 

26 Section 288. 

26 Section 288 (e). For a criticism of this grant of power to the Secretary 
of State, see Preuss, op. cit. supra, note 14, at 339. 

27 Westchester County v Ranollo, 187 Misc. 777, 67 N.Y. Supp. 2d 31, 41 
A.J.I.L. 690 (1947), City Ct., New Rochelle, (1946). 



32 

of State that the chauffeur was immune 28 but in the absence of 
such advice undertook to decide the jurisdictional issue, and held 
the chauffeur not immune. The case is interesting not so much 
for its result as for the reasons given, particularly the emphasis 
placed upon the "equal administration of justice" and the objec- 
tion voiced to the creation of a "large preferred class within our 
borders." 

In summary, the history of the immunities accorded representa- 
tives to and officials of the League of Nations and the United Na- 
tions highlights the degree to which the personal immunity of 
diplomats accredited to the territorial state is sui generis. It also 
suggests that with respect to other agents of foreign governments 
whose immunity is not firmly established, states are prepared to 
accord only that immunity which is essential to the performance 
of their specific functions. There is little disposition to group all 
officials of a foreign government in the same class, and accord all 
the same immunity, regardless of function. 

OFFICIAL ACTS 

A second major issue is whether an agent of a foreign govern- 
ment who does not enjoy personal immunity may nevertheless 
claim immunity with respect to acts done in the performance of 
his official duties. It has been asserted that there is a general rule 
of international law according such immunity 29 but there is much 
reason to challenge that assertion. 



28 The chauffeur's appointment had been duly notified to and accepted by 
the Secretary of State, and the Legal Adviser had advised the Secretary- 
General that in his opinion the chauffeur was entitled to the immunity. 
Preuss, "Immunity of Officers and Employees of the United Nations for 
Official Acts: The Ranollo Case," 41 A.J.I.L. 555, 556-57 (1947). On the issue 
of the conclusiveness of a State Department certificate, see pp. 559-65, and 
on the appropriateness of the jurisdictional issue being decided by the court, 
see p. 573. 

29 The Comment to Article 18 of the Draft Convention on Diplomatic 
Privileges and Immunities, Harvard Research in International Law, 26 
A.J.I.L. Supp. 15, 99 (1932) states that: "International law imposes upon 
the courts of the receiving state an incompetence ratione materiae in the 
case of public acts. * * *. Immunity for official acts, as the application of a 
general principle of international law, and attaching to the intrinsic nature 
of the acts themselves, does not constitute a part of 'exterritoriality' or 
diplomatic immunity in the strict sense, which imposes upon the court an 
incompetence ratione personae. It applies to all public acts, by whomsoever 
performed, and to all state agents, whether diplomatic or otherwise." See to 



33 

There is no such general principle of municipal law. The im- 
munity of the state from suits by its citizens or subjects, if it 
exists, does not imply, as a corollary, immunity for its agents. 30 
This rule of law is subject to qualification in the United Kingdom 
"in the case of acts committed abroad against a foreigner." 31 
This qualification is, however, concerned only with the jurisdic- 
tion of the British courts with respect to Acts of State of agents 
of the British Crown. It embodies a principle of British constitu- 
tional law stemming from certain concepts regarding the separa- 
tion of powers, rather than a rule of international law. 32 

Whether an agent of a foreign state is immune from the juris- 
diction of the territorial sovereign is a quite different question. 
The immunity, if it exists, is an extended application of the 
doctrine that "every sovereign State is bound to respect the in- 

the same effect Preuss, "Capacity for Legation and the Theoretical Basis of 
Diplomatic Immunity," 10 N.Y.U.L. Rev. 170, 178-80 (1932). 

The Restatement, Foreign Relations Law, asserts, however, in Comment C 
to Article 69, p. 221 that: "Public ministers, officials or agents of a state do 
not have immunity from personal liability, even for acts carried out in their 
official capacity, unless the effect of exercising jurisdiction would be to 
enforce a rule against the foreign state or unless they have one of the 
specialized immunities * * *." 

80 In Johnstone v. Pedlar [1921], 2 A.C. 262, an action by a United States 
citizen to recover money taken from him when he was arrested for illegal 
drilling, the House of Lords rejected the defense of Act of State, Viscount 
Finlay saying, at 271: "It is the settled law of this country, applicable as 
much to Ireland as to England, that if a wrongful act has been committed 
against the person or the property of any person, the wrongdoer cannot set 
up as a defence that the act was done by the command of the Crown. The 
Crown can do no wrong, and the Sovereign cannot be sued in tort, but the 
person who did the act is liable in damages, as any private person would be." 
See also Dicey, Conflict of Laws 163 (7th ed. 1958). Cf., Barr v. Matteo, 
360 U.S. 564 (1959), i/oward v. Lyons, 360 U.S. 593 (1959). 

81 Viscount Finlay in Johnstone v. Pedlar, id., at 271. This dictum was 
based on Buron v. Denman, [1848] L.R. 2 Ex. 167, 189, in which Commander 
Denman, who had burned the Spanish plaintiff's slave ships and freed a 
large number of slaves in territory on the West Coast of Africa, where 
slavery was lawful, was sued in trespass in an English court. Baron Parke, 
in leaving to the jury the issue of ratification of Denman's acts by the 
British government, stated that ratification would give the plaintiff "a 
remedy against the Crown only (such as it is) and actually exempts from 
all liability the person who commits the trespass." See also 26 Halsbury's 
Laws of England 251 (2d ed., 1937). 

82 Mann, "The Sacrosanctity of the Foreign Act of State," 59 L.Q. Rev. 
42,45 (1943). 



34 

dependence of every other sovereign State, and the courts of one 
country will not sit in judgment on the acts of the government of 
another done within its own territory." 33 The doctrine, so 
broadly stated, has been increasingly attacked but has been re- 
affirmed by the Supreme Court. 34 To a substantial yet indefinable 
degree it stems from notions regarding the separation of powers 
and is hence to that degree a rule of municipal rather than of 
international law. 35 Usual application of the doctrine is in cases 
in which the act of the foreign state is only indirectly involved, 
as in litigation involving private rights alleged to have been 
created by act of the foreign state. Critics have urged that, at 
least as to Acts of State other than legislation or judgments, the 
doctrine should be applied only where the Act of State "is done 
subject to or is recognized by that legal system which governs 
the legal relationship concerned," 36 in keeping with the approach 
of private international law. The confiscation cases are hence 



88 Underhill v. Hernandez, 168 U.S. 250, 252 (1897) ; see also 1 Lauter- 
pacht-Oppenheim, op. cit. supra, note 2, at 267. 

84 Banco Nacional de Cuba v. Sabbatino, 32 U.S.L. Week 4229 (Mar. 23, 
1964). For criticism of the doctrine, see Mann, op. cit. supra, note 32, at 
155; Zander, "The Act of State Doctrine," 53 A.J.I.L. 826 (1947); "Act of 
State Immunity," 57 Yale L.J. 108 (1947) ; "A Reconsideration of the Act 
of State Doctrine in United States Courts," a report of the Committee on 
International Law of the Association of the Bar of the City of New York, 
May, 1959. See also Kingsberry, "The Act of State Doctrine," 4 A.J.I.L. 
359 (1910); W. Harrison Moore, Act of State in English Law (1906). But 
see Falk, Toward a Theory of Participation of Domestic Courts in the In- 
ternational Legal Order: A Critique of Banco Nacional de Cuba v. Sab- 
batino, 26 Rutgers L. Rev. 1 (1961). 

as «The Act of State Doctrine is not of itself a rule of public international 
law. In the United States the doctrine would appear to be largely a con- 
sequence of judicial deference to the executive branch imposed by the separa- 
tion of powers in our constitutional system. Public international law does 
not prohibit the courts of one State from reviewing the validity of the acts 
of a foreign government under international law." A Reconsideration of the 
Act of State Doctrine in United States Courts, op. cit. supra, note 34, at 3. 
This seems an overstatement; there would appear to be an obligation to 
recognize a foreign act of state which is unexceptionable on any of the usual 
grounds, e.g. is not contrary to the public policy of the forum, does not relate 
to property or persons not within the foreign state. See Falk, op. cit. supra, 
note 34, at 31. But see Comment g to Article 41, Restatement, Foreign Rela- 
tions Law, p. 134 and Banco Nacional de Cuba v. Sabbatino, 32 U.S.L. Week 
4229, 4235 (Mar. 23, 1964). 

86 Mann, op. cit. supra, note 32, at 55. See also Comment b to Article 41, 
Restatement, Foreign Relations Law, p. 129. 



35 

explicable in terms of "the generally accepted principle of private 
international law that the transfer of tangible property is subject 
to the lex rei sitae * * *." 37 Private international law furnishes 
no rule where criminal jurisdiction is involved, but the general 
recognition in international law of the primacy of territorial 
jurisdiction suggests a parallel approach. 38 

Where the criminal or tort liability of the agent of a foreign 
state is involved, the application of the doctrine is again in a 
sense indirect. Underhill v. Hernandez 39 is said, however, to have 
established that in the American view the agent of a foreign state 
does enjoy immunity — in that case from tort liability — for acts 
done in the performance of his official duty, 40 since the defendant 
at the time of suit was no longer an agent of the foreign state, 
Venezuela. The English view is said to be to the contrary. 41 But 
even if the decision in Underhill v. Hernandez is read as predi- 
cating immunity on the official character of the defendant's act, 
the question remains whether this does not depend on the fact the 
act was done in Venezuela, not the United States, since the court's 
rationale for its decision was "the immunity of individuals from 



87 Mann, op. cit. supra, note 32, at 56. 

88 That criminal jurisdiction may exist on other bases, e.g., nationality, 
would seem not to destroy the parallel, since nationality is normally con- 
sidered a secondary basis for jurisdiction and in any event is not the exclu- 
sive basis. The common limitation on the exercise of jurisdiction on this basis 
that the act must also be a crime where it occurs approaches though it does 
not quite reach recognition that the law of the territorial state "governs 
the legal relationship concerned." 

89 168 U.S. 250 (1897). 

40 "It would appear that in the United States the basis of this immunity 
is ratione materiae rather than ratione personae and therefore immunity 
persists in respect of earlier official acts after an official no longer holds 
office. See Harvard Research Draft Convention on "Diplomatic Privileges 
and Immunities," Article 18, A.J.I.L. Supp. 97 (1932) ; Hatch v. Baez, 7 
Hun. 596 (N.Y. Sup. Ct. 1876)." A Reconsideration of the Act of State 
Doctrine in United States Courts, op. cit. supra, note 34, at 9, n. 21. 

41 "There cannot be any doubt that in this country, as in most others, the 
opposite view prevails in practice and theory, and that, accordingly, it is the 
personal position of the defendant, not the nature of the act the subject- 
matter of the proceedings, that is of decisive importance. Nevertheless, 
even in English law there is perhaps a certain inclination in some cases to 
attribute immunity to the nature of the act." Mann, op. cit. supra, note 32 
at 47. Mann refers to DiVischer's theory that it is the official act which is 
entitled to immunity, based on the distinction increasingly drawn between 
acts of sovereignty and acts done jure gestionis. 



36 

suits brought in foreign tribunals for acts done within their own 
state in the exercise of governmental authority * * *." 42 This is 
not the same as saying that a question which should be deter- 
mined by a careful balancing of the interests of states should turn 

purely on the matter of territorial sovereignty. Rather the sug- 
gestion is that, at least where criminal jurisdiction is concerned, 

the place where the act occurred is of such significance that only 
if it occurred outside the state seeking to exercise jurisdiction is 
there any basis for application of the Act of State doctrine, stand- 
ing alone. 43 Here, it should be noted that the notion of the 
sanctity of Acts of State draws its strongest support from what 
most would now consider an exaggerated view of the significance 
of territorial sovereignty. 44 In the cases following Underhill, the 
American courts have commonly restated the doctrine in terms 
which include the element that the act occurred in the foreign 
state. 45 Of more importance is that "except where constrained by 



43 168 U.S. 250, 252 (1897). (Emphasis added.) 

48 In the latter case there may still be occasion for balancing the opposing 
interests of the state concerned, as when the agent of the foreign state, e.g. 
a member of its armed forces, is a national of another state, and the latter 
state seeks to exercise jurisdiction on the basis of nationality. 

44 "The fundamental reason why persuading a sovereign power to do this 
or that cannot be a tort is not that the sovereign cannot be joined as a 
defendant or because it must be assumed to be acting lawfully. * * * The 
fundamental reason is that it is a contradiction in terms to say that within 
its jurisdiction it is unlawful to persuade a sovereign power to bring about a 
result that it declares by its conduct to be desirable and proper. It does 
not, and foreign courts cannot, admit that the influences were improper 
or the results bad. It makes the persuasion lawful by its own act. The 
very meaning of sovereignty is that the decree of the sovereign makes law." 
Mr. Justice Holmes in American Banana Co. v. United Fruit Co., 213 U.S. 
347,358 (1909). 

45 Ricaud v. American Metal Company, Ltd., 246 U.S. 304 (1918); Oetjen 
v. Central Leather Co., 246 U.S. 297 (1918) ; The Claveresk, 264 Fed. 276 (2d 
Cir. 1920) ; Banco de Espana v. Federal Reserve Bank of New York, 114 
F. 2d 438 (2d Cir. 1940) ; Bernstein v. Van Heyghen Freres Societe 
Anonyme, 163 F. 2d 246 (2d Cir. 1947) ; United States ex rel Von Heymann 
v. Watkins, 159 F. 2d 650 (2d Cir. 1947) ; United States ex rel Steinworth v. 
Watkins, 159 F. 2d 50 (2d Cir. 1947) ; Pasos v. Pan American Airways, 
229 F. 2d 271 (2d Cir. 1956) ; Wulfsohn v. Russian Socialist Federated 
Soviet Republic, 234 N.Y. 372 (1923) ; Salimoff & Co. v. Standard Oil Co. 
of New York, 262 N.Y. 220 (1933) ; see also A. M. Luther v. James Sagor 
and Co., [1921] 1 K.B. 456. Cf. Hewitt v. Speyer, 250 Fed. 367 (2d Cir. 
1918), in which the doctrine is stated in terms of "the acts of a foreign 
nation performed in its sovereign capacity." But the act in question was the 



37 

an international agreement requiring them to give extraterritorial 
effect to a foreign act of State, * * * United States courts have 
felt free to deny effect, as inconsistent with the public policy of 
the forum, to foreign acts of State purporting to affect a person 
or res not within the territorial jurisdiction of the acting State at 
the time of the act in question. The Act of State Doctrine there- 
fore is concerned only with acts of State operating directly on 
persons or property within the territorial jurisdiction of the 
acting State." 46 The fighting issue has been whether a court of 
the forum could deny effect to a foreign Act of State even though 
it affected a person or res within the forum's territorial jurisdic- 
tion, on the ground it was inconsistent with the public policy of 
the forum. The New York Court of Appeals has felt free to do 
so, 47 and the Second Circuit's decision in Bernstein v. Van Hey- 
ghen Freres Societe Anonyme 48 has been severely criticized be- 

payment in Ecuador into an account in the Bank of Ecuador of moneys 
claimed to be subject to a prior lien. 

The holding in Banco Nacional de Cuba v. Sabbatino was carefully 
limited, the court stating that "* * * we decide only that the Judicial Branch 
will not examine the validity of a taking of property within its own terri- 
tory by a foreign sovereign government, extant and recognized by this 
government at the time of suit * * *." 32 U.S.L. Week 4229, 4238 (Mar. 23, 
1964). (Emphasis added.; 

46 "A Reconsideration of the Act of State Doctrine in United States 
Courts," op. cit. supra, note 34, at 425, citing U.S. v. Moscow Fire Ins. Co., 
280 N.Y. 286 (1938), aff'd 309 U.S. 624 (1940) ; Vladikavkazsky Railway Co., 
v. New York Trust Co., 263 N.Y. 369 (1934) ; Plesch v. Banque Nationale de 
la Republique d'Haiti, 273 App. Div. 224, aff'd per curiam, 298 N.Y. 573 
(1948). Bollack v. Societe Generale, 263 App. Div. 601 (1942); Zwack v. 
Kraus Bros. & Co., 133 F. Supp. 929 (S.D.N.Y., 1955) aff'd in part, 237 
F. 2d 255 (2dCir., 1956). 

Mann, op. cit. supra, note 32, at 170, 171 states: "If, for one reason or 
another, an English court were precluded from opposing its principles of 
justice and morality to foreign acts of State, logic might necessitate the 
conclusion that foreign confiscatory legislation must also be allowed extra- 
territorial effect so as to comprise property situate in this country. English 
Courts have shrunk from arriving at so extraordinary a result." Mann 
cites also decisions of the Rumanian and Swedish Supreme Courts. 

" Perutz v. Bohemian Discount Bank in Liquidation, 304 N.Y. 533 (1953). 
See also Vladikavkazsky Railway Co. v. New York Trust Co., 263 N.Y. 369 
(1943) ; Sokoloft v. National City Bank, 239 N.Y. 158 (1924) ; Second Rus- 
sian Ins. Co. v. Miller, 297 F. 404 (2d Cir., 1924) ; Zwack v. Kraus Bros. 
& Co., 237 F. 2d 255 (2d Cir., 1956) ; cf. A.M. Luther v. James Sagor and 
Co. [1921] 1 K.B. 456. 

48 163 F. 2d 246 (2d Cir., 1947). 



38 

cause it did not. 49 There would seem to be no need to argue that 
an act which is in violation of its criminal law is contrary to the 
public policy of a state. 

The cases involving tort or criminal jurisdiction with respect to 
acts of agents of a foreign government committed in the receiving 
state suggest there is no immunity with regard to such acts 
merely because they were done in the performance of official duty. 
The leading case, Regina v. Leslie, 50 concerned the master of an 
English merchant vessel who, under a contract with the Chilean 
government, carried certain Chileans, banished by the Chilean 
government, from Valparaiso to Liverpool. The court drew a 
sharp distinction between the performance of official acts within 
and without the territory of the state of which the defendant was 
an agent, 51 and affirmed a conviction for false imprisonment for 
detaining the deportees after the vessel left Chilean waters. On 
virtually identical facts, involving a deportation from Hawaii, by 
order of President Dole, on a British vessel, the Divisional Court 
of British Columbia held the captain and owner liable in tort. 52 A 



""'Acts of State' Immunity," 57 Yale L.J. 108 (1947). But see Banco 
National de Cuba v. Sabbatino, 307 F. 2d 845, 859, (2d Cir., 1962). 
Reversed on other grounds, 32 U.S.L. Week 4229 (Mar. 23, 1964). 

60 Court of Criminal Appeals, 1860, 8 Cox Crim. Cas. 269 (1860) ; Restate- 
ment (Second), Conflict of Laivs, par. 43 f, Comment f, Illustration 7 (Tent. 
Draft No. 3, 1956) is expressly to the contrary. 

si "We assume that the government could justify all that it did within its 
own territory, and we think it follows that the defendant can justify all 
that he did there as agent for the Government, and under its authority. 
* * * The further question remains, can the conviction be sustained for 
that which was done out of the Chilean territory? and we think that it can. 
It is clear that an English ship on the high seas, out of any foreign terri- 
tory, is subject to the laws of England, and persons, whether foreign or 
English, on board such ship are as much amenable to English law as they 
would be on English soil. * * * [F]or an English ship the laws of Chile 
out of the state are powerless and the lawfulness of the acts must be tried 
by English law." Regina v. Leslie, supra, note 50, at 277-78. But see Rex v. 
Secretary of State for Foreign Affairs [1947] 2 All E.R. 550, [1947] Ann. 
Dig. 69 (No. 23). Compare Dick v. United States Lines Co., 38 F. Supp. 685 
(S.D. N.Y., 1941), holding a seaman could properly be confined by the ship's 
officers in a foreign port at the direction of officials of the littoral state. 

62 Cranstoun v. Bird, [1896] 4 B.C. 569. The Court said, at 581-82: 

"The admission can mean no more than this, that a lawful order was 
made in Hawaii to carry the plaintiff in a lawful manner to Vancouver, 
and in an Hawaiian ship the order might probably have been lawfully car- 
ried out. No international law, as it seems to me, has any operation on the 



39 

dictum in Vavasscur v. Krupp is to the same effect, distinguishing 
a case involving a personal sovereign from one involving his 
agents. 53 

Across the board, there is too much authority to the contrary 
to warrant the conclusion that there is a general rule of interna- 
tional law, based on such abstract principles as the equality and 
independence of States, according immunity to any agent of a 
foreign government for any act done in the performance of duty. 
Where the immunity is recognized, it appears to be based pri- 
marily — as is personal immunity — on the need to protect the 
agent in the performance of his functions, and, indirectly, the 
state he serves in the conduct of its affairs. One factor in 
that quite flexible concept appears to be the status of the 
agent, so that personal immunity and immunity for official acts 
in a sense overlap. A second basic for the immunity may be fair- 
ness, i.e., the feeling that it is unfair to place a man in the 
dilemma of having to choose between conflicting duties. 

The Vienna Convention on Diplomatic Relations accords im- 
munity to certain officials not entitled to personal immunity. 54 It 
is clear, however, that this is not responsive to a view that a 
general rule of international law requires this result. Rather it 



case. An English captain of an English ship outside Hawaiian jurisdiction 
commits a trespass, and Hawaiian law or acts of that Government cannot 
justify the trespass in an English court. No doubt in an Hawaiian court 
it would or might be otherwise, and this shows that Buron v. Denman, 2 
Ex. 167, has no application." 

68 German shells, said to infringe English patents, were brought into Eng- 
land by the Mikado to be placed on a Japanese warship. The patentee ob- 
tained an injunction against the agents of the Mikado restraining them 
from removing the shells. The Mikado applied to be made and was made a 
defendant and an order was issued that, notwithstanding the injunction, he 
could remove the shells. Brett, L. J., in the course of his opinion, said: "If 
it is an infringement of the patent by the Mikado, you cannot sue him for 
that infringement. If it is an infringement by the agents, you may sue the 
agents for that infringement, but then it is the agents whom you sue." 
Vavasseur v. Krupp, [1878] 9 Ch. D. 351, 358. 

84 Article 38 of the Vienna Convention on Diplomatic Relations, supra, note 
8, provides that: 

"1. Except insofar as additional privileges and immunities may be 
granted by the receiving State, a diplomatic agent who is a national 
of or permanently resident in that state shall enjoy only immunity from 
jurisdiction, and inviolability, in respect of official acts performed in the 
exercise of his functions. 



40 

was motivated by the opinion that there is a functional basis for 
according the immunity. 55 Moreover, immunity even for acts done 
in the performance of official duty is expressly negatived in other 
instances. This is clear recognition that no rule of international 
law requires according the immunity to all officials of a foreign 
government. 56 

The foregoing suggests, as guidelines in appraising the claim 
that a member of an armed force is entitled to personal immunity, 
these considerations : 

(1) There is no general rule according personal immunity to 
the agents of a foreign state, and the great majority of such 
agents enjoy no immunity. 

(2) There is a discernible tendency to limit immunities of 
agents of a state to those necessary, in a quite strict sense, to the 
exercise of their functions, and there is a correlative emphasis 
on waiver. 

(3) The established immunity of diplomats accredited to a 
state is of limited significance as an analogy because; (a) it has 
deep historical roots, including the discredited fiction of extra- 
territoriality of embassies ; (b) it depends in part on accreditation 
and its corollaries, which provide an independent sanction; and 
(c) it depends largely on the peculiarly close relationship between 
the diplomat and the state to which he is accredited. 

Regarding the claim that an agent of a foreign state is entitled 



66 Commentary (c) to Article 37 of the Draft Articles on "Diplomatic 
Intercourse and Immunities," Report, International Law Commission, U.N., 
10th Session, 28 April-4 July, 1958. G.A., 13th Session, Supp. No. 9 
(A/3859), notes that: "The majority * * * considered it essential for a 
diplomatic agent who is a national of the receiving state to enjoy at least a 
minimum of immunity to enable him to perform his duties satisfactorily. 
That minimum, it was felt, was inviolability, and also immunity from 
jurisdiction in respect of official acts performed in the exercise of his 
functions * * *." 

6 * Article 38 of the Vienna Convention on Diplomatic Relations, supra, note 
8, provides : 

"2. Other members of the staff of the mission and private servants 
who are nationals of or permanently resident in the receiving State shall 
enjoy privileges and immunities only to the extent admitted by the re- 
ceiving State." 

But those not nationals or residents of the receiving States who are mem- 
bers of the administrative and technical staffs of a mission enjoy personal 
immunity, and members of the service staff immunity in respect of acts per- 
formed in the course of their duties. (See also Article 37 of the Convention.) 



41 

to immunity with respect to acts done in the performance of duty, 
the situation is much less clear. There is some doubt that the Act 
of State doctrine extends to acts done outside the state of which 
the accused is an agent, and in any event the reach of the doctrine 
is likely to be limited strictly in terms of the need for protecting 
the agent in the performance of his duties. 



CHAPTER m 

JURISDICTION OVER MERCHANT 
VESSELS AND SEAMEN 

Theoretical discussion of the bases of criminal jurisdiction and 
immunities therefrom can be misleading. The type case that 
readily comes to mind is likely to be one in which virtually all the 
relevant considerations support the claim of a state to jurisdic- 
tion, or support the claim the accused is immune, e.g., an Ameri- 
can student at the Sorbonne disturbs the peace of Montmartre, or 
an ambassador exceeds Maryland's speed limit. 

Situations in which each of two or more states has a reasonable 
basis for claiming jurisdiction and for contesting that of any 
other state better illuminate the way in which conflicting interests 
have been balanced, and self-restraint exercised, in reaching ac- 
ceptable solutions. One such situation which has arisen many 
times is that of a merchant seaman who commits a crime in a 
foreign port. Because a parallel may exist between a case of this 
sort and that of a member of the crew of a warship who commits 
an offense in a foreign port, it is appropriate to review briefly 
the way in which jurisdictional conflicts involving merchant sea- 
men have been resolved. 

Merchant vessels by their nature and by the activities in which 
they engage invite jurisdictional controversy. 1 A ship may fly the 
flag of one state, be manned by officers and seamen drawn from 
one or several other states, carry passengers of varying nationali- 
ties, and be owned by a national of yet another state. Also, a ship 
on a single voyage may transit the high seas, the territorial 
waters of other states, and dock in foreign ports. The flag it flies 
is recognized as determining the status of the ship for jurisdic- 



1 "[T]he virtue and utility of sea-borne commerce lies in its frequent and 
important contacts with more than one country. If * * * the courts of each 
were to exploit every such contact to the limit of its power, * * * a 
multiplicity of conflicting and overlapping burdens would blight interna- 
tional carriage by sea." Mr. Justice Jackson, in Lauritsen v. Larsen, 345 
U.S. 571, 581 (1953). 



44 

tional purposes. 2 The flag state is recognized as having jurisdic- 
tion, and normally exercises jurisdiction, with respect to crimes 
committed on a vessel on the high seas. 3 It was at one time com- 
mon to rationalize this result by speaking of the vessel as a part 
of the territory of the flag state. This fiction is rejected in some 
quarters 4 but it is acknowledged that the flag state's jurisdiction 
is as extensive as though the ship were a part of its territory. 5 
The Supreme Court has described the jurisdiction as partaking 
"more of the characteristics of personal than of territorial 



3 See Articles 5, 6, 10, 11 of the Convention on the High Seas, 13 UST 
2312, TIAS 5200. Flags of convenience (or necessity) may undermine this 
approach but McCulloch v. Sociedad National, 372 U.S. 10 (1963) and 
lucres Steamship Co., Ltd. v. International Maritime Workers Union, 372 
U.S. 24 (1963) reaffirm the traditional doctrine. The right to assert jurisdic- 
tion based on ownership or control is questioned by Hyde: "[T]he legisla- 
tive action of the United States has amounted in substance to a claim that 
American ownership or control of vessels under foreign registry may be 
creative of a right of jurisdiction over ships that must, in point of 
'nationality,' be regarded as foreign to itself. The soundness of the American 
claim, which is not understood as yet to have been challenged in an interna- 
tional forum, may be fairly questioned, especially if applied to the conduct 
of alien occupants on account of acts committed when such vessels are on 
the high seas." 1 Hyde, International Law Chiefly as Interpreted and Ap- 
plied by the United States, 802 (2d ed. rev. 1947). 

8 1 Hyde, op. cit. supra, note 2, at 805. Colombos, International Law of the 
Sea, 257 (4th ed. 1959). 

4 "Some authorities reject, as a rather mischievous fiction, the doctrine 
that a ship is constructively a floating part of the flag state, but apply the 
law of the flag on the pragmatic basis that there must be some law on ship- 
board, that it cannot change at every change of waters, and no experience 
shows a better rule than that of the state that owns her." Lauritsen v. 
Larsen, 345 U.S. 571, 585 (1953). The rejection of the fiction in Chung Chi 
Cheung v. King, infra, page 169, as to warships necessarily involves its re- 
jection as to merchant vessels. See Rex v. Gordon-Finlayson, [1941] 1 
K.B. 171. 

6 "A corollary of the principle of the freedom of the seas is that a ship on 
the high seas is assimilated to the territory of the State the flag of which it 
flies, for, just as in its own territory, that State exercises its authority 
upon it, and no other State may do so." S.S. Lotus, Publications P.C.I.J., 
ser. A, No. 10, at 25 (1927). Colombos, op. cit. supra, note 3, at 247 criticizes 
the statement as affected by the theory of territoriality of a merchant 
vessel. See also Case of Ernest and Prosper Everaert, Tribunal Correc- 
tional de Dunkerque, France, Jan. 4, 1936, [1935-1937] Ann. Dig. 262 
(No. 110). 

The flag state does not have exclusive jurisdiction over the offense of 
piracy, but historically and otherwise piracy seems clearly sui generis. 



45 

sovereignty" 6 and a leading text writer has described it as "a 
jurisdiction over the persons and property of its citizens." 7 Both 
phrases suggest that the ship is viewed as an entity to which a 
status may appropriately be assigned for purposes of jurisdiction. 
A ship, employed as a unit in a business enterprise, is in a very 
real sense such an entity. Both safety at sea and the success of 
the enterprise, which depend on the prompt carriage of pas- 
sengers and cargo and a minimum time spent in port, require an 
efficient organization and strict discipline, which ultimately must 
be sanctioned by the law of some state. 8 The complexity of a 
ship, moreover, requires officers and seamen with varied, comple- 
mentary skills. The loss of any one of the officers or seamen may 
hamper or cripple the operation of the ship. A replacement may 
be hard to find, particularly in a foreign port. These factors 
support, though historically they may not have prompted, recogni- 
tion of the competence of the flag state. 9 



•Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123 (1923). The comment was 
made with reference to the holding that the 18th Amendment did not ex- 
tend to American merchant vessels outside the waters of the United States 
although in terms its scope was "The United States and all territory sub- 
ject to the jurisdiction thereof." See also Aderhold v. Menefee, 67 F. 2d 
345 (5th Cir. 1933). Cf. Casale and Donati Case, Court of Cassation 
(Chambre Criminelle), France, Jan. 9, 1937, [1935-1937] Ann. Dig. 247 
(No. 102). 

7 "The jurisdiction which a State may lawfully exercise over vessels flying 
its flag on the high seas is a jurisdiction over the persons and property of 
its citizens, it is not a territorial jurisdiction." Colombos, op. cit. supra, 
note 3, at 247. 

8 "States make certain rules for providing ships with their nationality and 
authorizing them to fly their flags. There is therefore an intimate connec- 
tion between the ship and the State whose nationality she acquires which 
carries with it the application to the ship of the laws of the flag-State. It 
is under these laws that the captain exercises his authority and enforces it." 
Colombos, op. cit. supra, note 3, at 249. 

9 Charteris, "The Legal Position of Merchantmen in Foreign Ports and 
National Waters," [1920-1921] Brit. Yb. Intl. L. 45, 73, quoting in part 
from Hall, International Law 212 (7th ed., 1917), refers to the considera- 
tions "that the crew form 'part of an organized body of men, governed 
internally in conformity with the laws of the state, enrolled under its con- 
trol and subordinated to an officer who is recognized by the public au- 
thority/ and that the exercise of local jurisdiction over them may involve 
detention of the ship, and even the loss of skilled assistance not always 
easy to replace." 

"The jurisdiction over crimes committed on a ship at sea is not of a terri- 
torial nature at all. It depends upon the law which for convenience and 



46 

Jurisdiction being conceded normally to be in the flag state 
when a vessel is on the high seas, 10 the theoretical basis for the 

by common consent is applied to the case of chattels of such a very special 
nature as ships." Judge Finlay, dissenting in the S-S. Lotus, Supra, note 5, 
at 53. See also Judge Loder's comment, note 10, infra. 

"* * * [T]here is a mutual disposition on both sides not to exert it 
[jurisdiction] in a way which will interfere with the proper discipline of 
the ships of either nation. If every complaint of any individual of the crew 
of a vessel against the officers for ill-treatment is to be taken up by the 
civil authorities on shore, and these officers prosecuted as criminals, com- 
mercial intercourse will be subjected to very great annoyance and serious 
detriment." Secretary March to Mr. Crampton, British Minister, April 19, 
1856, M.S. Notes to Great Britain, VII, 524, 2 Moore, International Law 
Digest 290 (1906). 

10 Article 6, Convention on the High Seas, supra, note 2; Colombos, op. cit. 
supra, note 3, at 257. Recognition of the jurisdiction of the flag state when 
a vessel is on the high seas is, of course, further supported by the con- 
sideration that no other state has a readily discernible basis for asserting 
jurisdiction. "A merchant ship being a complete entity, organized and sub- 
ject to discipline in conformity with the laws and subject to the control of 
the State whose flag it flies, and having regard to the absence of all terri- 
torial sovereignty upon the high seas, it is only natural that as far as con- 
cerns criminal law this entity should come under the jurisdiction of that 
State." Judge Loder, dissenting, in the Lotus Case, supra, note 5, at 39. 

The state of which a seaman or passenger is a national may assert at 
least a subsidiary competence as to his conduct. "It is submitted that a 
State whose subjects are on board a foreign ship can appreciate as it thinks 
fit and attach what consequences it likes to such acts, provided that in so 
doing it does not exclude or supplant the primary jurisdiction of the State 
whose flag the vessel flies * * *. 

"In all cases, however, where such persons have fallen into the hands of 
the territorial authorities of their own State, there appears to exist no 
doubt that the local Courts are entitled to exercise jurisdiction." Colombos, 
op. cit. supra, note 3, at 259, 264. See also Hall, International Law 308 (8th 
ed., 1924). Both writers discuss the incident of Anderson, an English sailor 
on board an American vessel who stabbed the mate on the high seas, and 
was tried and convicted by a British court when the vessel docked in 
Calcutta, giving rise to a controversy between Great Britain and the 
United States. Hall observed of the British position that "Probably * * * 
the claim to strictly concurrent jurisdiction is excessive." See 1 Moore, 
International Law Digest 932, 935 (1906). 

Colombos, op. cit. supra, note 3, at 267, summarizes the situation with the 
statement: "On the whole question, there is weighty and preponderant 
opinion in favour of the rule that jurisdiction in respect of crimes com- 
mitted on board merchant vessels on the high seas is primarily vested in 
the Courts of the flag-State of the vessel, but that such jurisdiction is not 
exclusive and that the State whose national is accused of a crime on board 



47 

jurisdiction may be considered unimportant. 11 This ceases to be 
true, however, when a ship enters the territorial waters or docks 
at a port of another state. It was never helpful, in this context, 
to refer to a conflict of two "territorial" jurisdictions. In fact 
there has been an effort, not yet entirely successful, to allocate 
jurisdiction on the basis of a more precise definition of national 
interests. Acts committed on board a vessel passing through the 
territorial waters of another state, in exercise of the right of 
innocent passage, take place within the territory of the littoral 
state. Where such acts and their effects are confined to the vessel, 
the interest of the littoral state is not, however, readily dis- 
cernible, and "* * * it is so unusual for a local court to take 
cognizance of such affairs that an attempt to do so might well be 
considered as officious meddling and probably contrary to the 
customary rules of international law." 12 In brief, in such in- 
stances the interests of navigation and commerce clearly predomi- 
nate. Where, however, the act takes effect outside the vessel, e.g., 
in collision cases, the littoral state may properly assert juris- 
diction. 13 

When a criminal act takes place on a ship in a foreign port a 
more complex problem is raised. The lines which have been drawn 
in allocating jurisdiction with respect to such acts are instructive 
as to the interests which states are moved to defend. 14 

a foreign ship is competent to try him when he is within its jurisdiction, 
although such jurisdiction is not generally exercised." 

Some states assert jurisdiction where an offense is committed on board a 
foreign merchant vessel against one of their nationals — a much more doubt- 
ful proposition. 

11 Except in collision cases, e.g., the S.S. Lotus. 

13 Jessup, The Law of Territorial Waters and Maritime Jurisdiction 122 
(1927). But see Article 19, Convention on the Territorial Sea and the 
Contiguous Zone, adopted April 27, 1958, U.N. Doc. A/CONF. 12/L.52, 38 
Dept. of State Bulletin 1111, 1113, and Article 49(2), Restatement, Foreign 
Relations Law, at 164. 

18 Thus, Jessup points out that the British Territorial Waters Jurisdiction 
Act of 1878, passed after the British courts had held they had no jurisdic- 
tion over the captain of a German vessel whose ship was in collision with a 
British vessel in British territorial waters, was a proper assertion of 
jurisdiction. Jessup, op. cit. supra, note 12, at 122. See also Colombos, op. 
cit. supra, note 3, at 276. 

""These modifications are justified by the fact that the interests of the 
littoral State are more directly affected by the presence of a foreign vessel 
in its ports than by her passage through its territorial waters." Colombos, 
op. cit. supra, note 3, at 279. 



48 

Where others than the crew are involved, the assistance of the 
local authorities is asked, 15 or the peace of the port is disturbed, 16 
the littoral state has a right, superior to that of the flag state, 
to assert jurisdiction. Where, however, only internal discipline 17 
or acts participated in only by the crew and not disturbing the 
peace of the port are involved, the littoral state does not normally 
assert jurisdiction. Rather such cases are commonly left to the 
flag state. The flag state may, moreover, exercise jurisdiction in 
any case if the territorial state does not choose to, and the United 
States, among others, does so as to certain offenses. 18 

The only significant difference of opinion in this area relates to 



16 Public Prosecutor v. Kristian Kalsen, Tribunal Correctionnel of Nantes, 
France, April 2, 1937 [1935-1937] Ann. Dig. 210 (No. 79). 

19 Article 53 of the Restatement, Foreign Relations Law, at p. 178, states 
that the coastal state: "* * * (a) waives the right to exercise its enforce- 
ment jurisdiction * * * with regard to matters involving the internal manage- 
ment and discipline of the vessel and with regard to criminal conduct aboard 
the vessel, unless 

( i) the consequences of the crime extend to the coastal state or 
(ii) the crime is of a kind to disturb the peace of the port * * *." 
The United States has conceded priority of jurisdiction to the territorial 
state in other than the excepted cases. See the instances cited in 2 Hack- 
worth, Digest of International Law, 212-213 (1941). For the British posi- 
tion, see Charteris, op. cit. supra, note 9, at 72-73. 

17 Gidel suggests that infractions of discipline which do not at the same 
time constitute crimes "de droit commun" concern only the flag state, and 
that the littoral state has no jurisdiction with respect to them. 2 Gidel, 
Droit International Public de la Mer 200, 201 (1934). See In re Schultz, 
Supreme Court, Costa Rica, Dec. 26, 1939, [1938-1940] Ann. Dig. 169 
(No. 65). 

18 See United States v. F lores, 289 U.S. 137 (1933), overruling a demurrer 
to an indictment for murder committed by an American on an American 
vessel while it was at anchor in the Port of Matadi, in the Belgian Congo. 

"* * * The right of a nation to punish offenses committed on its vessels, 
national or private, which for most purposes are considered as part of the 
national territory, is also admitted. Such offenses, it has been held, may be 
punished by the vessel's sovereign, even when they were committed on a 
merchant vessel in the ports of another sovereign, provided the latter did 
not take jurisdiction." Moore's Report, 1887 U.S. Foreign Relations 757, 
771. See also Regina v. Anderson [1868] 11 Cox Crim. Cas. 198 (Cr. App.), 
affirming the conviction of an American seaman for manslaughter com- 
mitted on a British vessel in the Garonne River, 45 miles from the sea; The 
Queen v. Carr [1882] 10 Q.B. 76; In re Nocita, Court of Cassation, Italy, 
July 6, 1938, [1938-1940] Ann. Dig. 297 (No. 98) ; 2 Gidel, op. cit. supra, 
note 17, at 249. 



49 

the basis for this allocation of competence between the littoral 
and the flag state. There are two approaches, the Anglo-American 
and the French, each of which has other adherents. Neither re- 
lies on the fiction of extraterritoriality, which would exclude the 
jurisdiction of the littoral state altogether. The Anglo-American 
theory rather asserts the primacy of the jurisdiction of the littoral 
state in all cases, and explains the priority in fact accorded the 
flag state in certain cases as a concession which the territorial 
state may grant or withhold in its discretion, case by case. 19 The 
French position, which stems from the Avis du Consiel d'Etat of 
November 6, 1806, 20 is said, on the other hand, to be predicated 
on the position that international law requires the littoral state to 
accord immunity where only internal discipline or acts partici- 
pated in only by the crew and not disturbing the peace of the port 
are involved. 21 Gidel asserts this is a misinterpretation of the 



19 In Wildenhus's Case, 120 U.S. 1 (1887), a treaty was involved, but the 
court referred (p. 12) to the "comity" by which "it came to be generally 
understood among civilized nations that all matters of discipline and all 
things done on board which affected only the vessel or those belonging to 
her, and did not involve the peace or dignity of the country, or the tran- 
quility of the port, should be left by the local government to be dealt with 
by the authorities of the nation to which the vessel belonged * * *." 

"A merchant ship of one country voluntarily entering the territorial 
limits of another subjects herself to the jurisdiction of the latter. The 
jurisdiction attaches in virtue of her presence, just as with other objects 
within those limits. During her stay she is entitled to the protection of the 
laws of that place and correlatively is bound to yield obedience to them. 
Of course, the local sovereign may out of consideration of public policy 
choose to forego the exertion of its jurisdiction or to exert the same in 
only a limited way, but this is a matter resting solely in its discretion." 
Cunard Steamship Company, Ltd. v. Mellon, 262 U.S. 100, 124 (1923). 

80 Quoted in full in translation by Charteris, op. cit. supra, note 9, at 51. 

"Jessup concludes (as does Charteris, op. cit. supra, note 9, at 56-61) 
that "* * * even though one accepts the theory that the French rule posits 
certain definite limitations upon the jurisdiction of the local state, it can 
scarcely be said that this view has received such general acceptance as to 
make it a rule of international law." He argues that the acceptance in 
France of the moral disturbance theory, which implies that the local court 
may determine for itself whether an incident has affected the peace of the 
port, precludes saying that a foreign vessel may claim immunity as of right. 
Jessup, op. cit. supra, note 12, at 193-94. 

Gidel agrees that, although the approach of the Avis has been widely 
adopted, it cannot be said there is a rule of international law making that 
approach obligatory. 2 Gidel, op. cit. supra, note 17, at 247. See also the 



50 

Avis. He insists that the Avis recognizes the primacy of the 
littoral state's jurisdiction in all cases other than those involving 
pure matters of discipline ; that the French approach differs from 
the Anglo-American only in that it calls for the littoral state to 
indicate in advance the class of cases in which it will forego 
exercising its jurisdiction. 22 It seems agreed, however, that what- 
ever the difference in the theoretical approach, the line drawn by 
both groups of states is in practice much the same. 23 

The nationality of the seamen is not a factor in the allocation of 
jurisdiction between the flag state and the territorial state. The 
flag state may exercise jurisdiction over seamen of any nation- 
ality, 24 and there is substantial support for the view that the 
nationality of the seamen 25 should in no case affect the allocation 
of jurisdiction. The United States, when it exercised extraterri- 
torial jurisdiction in the Orient, asserted the right both to protect 
and to try seamen on American vessels, even for offenses on land, 
regardless of their nationality, 26 even nationals of the territorial 
state. 27 This at least suggests that the true basis for the assertion 

Reporters' Notes to Article 53 of the Restatement, Foreign Relations Law, 
at 180. 

22 2 Gidel, op. cit. supra, note 17, at 204-05; 208-09; 220-21; 246-47. 

23 Colombos, op. cit. supra, note 3, at 248. 

24 See Regina v. Anderson, [1868] 11 Cox Crim. Cas. 198 (Cr. App.). The 
British Merchant Shipping Act, 1894, 57 and 58 Vict., c. 60, sec. 687, applies 
to offenses "either ashore or afloat" by any seaman who at the time "or 
within three months previously has been, employed in any British ship * * *." 

26 2 Gidel op. cit. supra, note 17, at 210 ; see also Mr. Fish, Secretary of 
State, to Mr. Schneck, March 12, 1875, [1875] U.S. Foreign Relations 592 
and 2 Moore, op. cit. supra, note 9, at 295-97, relating to jurisdiction with 
respect to internal discipline, citing an instance in which United States 
Commissioners at New Orleans were instructed not to exercise jurisdiction 
in a dispute involving American sailors on a British vessel in that port. 

20 See 2 Moore, op. cit. supra, note 9, at 605-12; Hinckley, American 
Consular Jurisdiction in the Orient 87 (1906) ; In re Ross, 140 U.S. 453 
(1891). Hall, Foreign Powers and Jurisdiction of the British Crown, 141-42 
(1894), took the position that the flag state had protective but not punitive 
jurisdiction over seamen of other nationalities in treaty states. 

27 "Chinamen employed as seamen on American ships have the status of 
American seamen, even in Chinese waters, 1892 U.S. Foreign Relations 243. 
A Japanese seaman on an American naval vessel was held subject to Ameri- 
can consular jurisdiction in 1882 for a crime committed in Japan: In re 
Ikeda Tome Kicki, Seedmore, U.S. Courts in Japan, 229." Hinckley, op. cit. 
supra, note 26, at 88. But Japan challenged American jurisdiction (Mr. 
Gresham, Secretary of State, to Mr. Dun, Minister to Japan, Nov. 29, 1894, 



51 

of jurisdiction by the flag state is the protective principle rather 
than the nationality principle. The fiction of nationality becomes 
particularly thin, of course, when a ship sails under a flag of 
convenience, and no member of the crew is a Panamanian, 
Liberian or the like. 

Any exemption from the local jurisdiction is, however, limited 
to incidents involving only the crew, and does not apply where 
passengers 28 or strangers to the vessel are the offenders or, 
seemingly, the victims. 29 This approach confirms the conclusion 

and Dec. 8, 1894, M.S. Inst. Japan IV 226, 228, 2 Moore, op. cit. supra, note 
9, at 609, and the issue was left undecided; it should be noted that the 
incident cited by Hinckley involved a sailor on a naval vessel. 

88 In the recent case of Complaint of Mikkelson, France, Court of Cassation 
(Criminal), June 12, 1952, 48 A.J.I.L. 164 (1954), one alien was accused of 
criminal defamation of another on a Norwegian vessel in a French port. 
The Court of Cassation held "that the famous opinion of the Conseil oVEtat 
of Nov. 20, 1806, did not exclude the jurisdiction of the littoral state when 
the crime was committed either by or against a person who was not a part 
of the ship's company, even if the public order of the littoral state was not 
disturbed by the offense. French nationality of the victim was in no way 
prerequisite for jurisdiction." Charter is, op. cit. supra, note 9, at 73 states: 
"On principle they (passengers) become subject to the law prevailing on 
the ship on which they embark, but as they perform no function in the 
navigation, they do not appear to be properly subject to the considerations 
which, on the French view, make for the immunity of the ship's company 
from the territorial jurisdiction, * * *." See also 2 Gidel, op. cit. supra, note 
17, at 211-213, citing the Cordoba, in which one German passenger killed 
another on board a foreign vessel anchored in Dunkirk. The French au- 
thorities were appealed to, but the court, in condemning the accused, also 
indicated that the affair was outside the rule leaving jurisdiction to the 
flag state when the crew was involved. And see Jessup, op. cit. supra, note 
12, at 151. 

*• "There should be included in the same juridical category (as pas- 
sengers) the persons, not passengers on the foreign vessel, who find them- 
selves on board for one reason or another; the criminal acts committed by 
such persons, if they do not constitute pure and simple infractions of dis- 
cipline, or against such persons, are subject to the competence of the terri- 
torial authorities." 2 Gidel, op. cit. supra, note 17, at 213, citing The 
Nymphea, Trib. Bordeaux, in which the court said that "in all other cases, 
and notably when the offence has been committed by or against a person 
not a member of the crew, the French penal law is always applicable." 

The fact that a stranger to the vessel is not a national of the littoral 
state does not preclude that state from taking jurisdiction. Jessup, op. cit. 
supra, note 12, at 150, citing the Cassa, in which a French court took 
jurisdiction where two Syrian seamen assaulted two other Syrians, resi- 
dents of Marseilles, on board an Austrian vessel at anchor in Marseilles. 



52 

that the interests of commerce and navigation — rather than any 
notions of extraterritoriality — are at the root of the exemption 
of seamen. Those interests prevail only when there are no sub- 
stantial conflicting interests of the littoral state. They never pre- 
vail, of course, when the offense occurs on shore, regardless of 
who is involved. The interests of the littoral state are then 
clearly dominant. 

It is perhaps implicit in what has been said that a merchant 
vessel in a foreign port is in no sense inviolable. The littoral state 
unquestionably has enforcement jurisdiction on the vessel, 30 al- 
though it seems to be agreed also that the flag state may exercise 
some measure of enforcement jurisdiction on the vessel. 31 



There is seemingly no precedent with regard to members of the family 
of a member of the crew. 

80 See Comment f to Article 49 of the Restatement, Foreign Relations Law, 
at 166; 2 Moore, op. cit. supra, note 9, at 855; see also Charteris, op. tit. 
supra, note 9, at 85, for a discussion of the Marie Luz, in which the Emperor 
of Russia, as arbitrator, sustained the right of the Japanese authorities to 
release coolies being carried from Macao to Peru on a Peruvian vessel which 
put into Yokohama under stress of weather, and, at 75, of the Anglo- 
German controversy over the right of the British to arrest passengers on 
German ships putting into British ports who were fugitives from British 
justice. Disputes have arisen primarily over the right to give asylum to 
political offenders. 

81 Article 32 of the Restatement, Foreign Relations Law, states at p. 92 
that "A state has jurisdiction, as to rules within its jurisdiction to prescribe, 
to enforce them (a) aboard a vessel or aircraft having its nationality while 
under the control of its commanding officer * * *." Comment b to Article 33 
notes that the flag state may exercise such jurisdiction in a foreign state as 
of right only in the case of a vessel in innocent passage; in other circum- 
stances such jurisdiction may be exercised only with the consent, express or 
implied, of the territorial state. Comment c states that "The enforcement 
action that a state may take in the territory of another state includes only 
arrest and detention in the case of merchant vessels." Article 49(3), at p. 
165, relating to Vessels in Passage, states that the flag state's enforcement 
jurisdiction is limited "to detention or such other interim enforcement 
measures as the internal management or discipline of the vessel requires." 
Comment g to that Article states, at p. 167, that the flag state's enforce- 
ment jurisdiction may be exercised "* * * only to a limited extent dictated 
by the necessities of discipline and internal management of the vessel. For 
this purpose, detention of the person charged with the crime and minor 
disciplinary measures are sufficient. Should the crime be such as to require 
a trial and the imposition of more than minor disciplinary sanctions, the 
coastal state need permit no more than detention of the offender so that such 
trial and punishment can take place after the vessel is outside its territory. 



53 

The implications of the allocation of jurisdiction with respect 
to merchant vessels are worth noting. They are : 

(1) The allocation is made not by rigid adherence to an 
absolute principle, e.g., territorial sovereignty, but by a more 
subtle balancing of the opposing interests of the littoral and 
flag state. 

(2) Primacy is clearly given the interest of the littoral state, 
since it is recognized as having a superior basis for asserting 
jurisdiction: (a) Where the peace of the port is disturbed, even 
though the disturbance is only moral; 32 (b) Where passengers or 

Usually, this means that the offender will be brought back for trial and 
punishment to the territory of the state of the flag of the vessel." Article 53 
(b) states at p. 179 that the territorial state "consents to the exercise by the 
foreign state of its jurisdiction * * * to the extent necessary to detain on 
board the vessel a person with respect to whom the coastal state does not 
exercise its jurisdiction," and Comment c states at p. 180 that Comment f to 
Article 49 is equally applicable to Article 53(b). 
See also Colombos, op. cit. supra, note 3, at 258. 

Hall, Foreign Powers and Jurisdiction of the British Crown (1894), 
describes the jurisdiction of British Consuls, and of the "naval court" which 
could be summoned in situations beyond the competence of a consul or in 
which he desired assistance, and notes that "the jurisdiction exercised by 
consuls and naval courts shows that accused persons may be held in custody, 
may be tried and sentenced to imprisonment or lesser penalties, and may be 
sent in custody out of the territorial jurisdiction, either for the purpose of 
being tried or of undergoing punishment." (pp. 78-79). He notes also that 
"Persons are no doubt frequently sent on shore from ships to a consulate in 
custody, but in such cases there is obviously at least tacit consent on the 
part of the territorial authorities. Adversely to such authorities it cannot be 
done." (p. 79, footnote). 

The Allied Powers (Maritime Courts) Act, 1941, 4 & 5 Geo. 6, c. 21 (May 
22, 1941) authorized certain allies of Great Britain to establish Maritime 
Courts in the United Kingdom to try persons, not being British subjects, for 
certain offences, including "any act or omission committed by any person on 
board a merchant ship of that Power." Sec. 2 (1). But Sec. 3 (1) provided 
that "Nothing in this Act shall deprive any British court of jurisdiction in 
respect of any act or omission constituting an offence against the law of any 
part of His Majesty's dominion," and the exercise of jurisdiction was subject 
to certain other restrictions and limitations. These make the major premise 
abundantly clear that without such express statutory authorization there 
would have been no right to establish the courts. See Colombos, op. cit. 
supra, note 3, at 268. 

82 The Supreme Court, in Wildenhus's Case, op. cit., note 19, stated at 18 : 

"It is not alone the publicity of the act, or the noise and clamour 
which attends it, that fixes the nature of the crime, but the act it- 
self. If that is of a character to awaken public interest when it be- 



54 

strangers to the vessel are involved, that is, where the offense is 
not inter se; and (c) With respect to all acts which occur on 
shore. 

(3) No interest of the flag state other than that its commerce 
should not be unduly burdened is recognized and what will unduly 
burden such commerce is narrowly construed. 

(4) The nationality of the members of the crew is not a 
factor. 

(5) The interests of the members of the crew as individuals, in 
where they are to be tried, by whom, and under what legal 
system, are not at least expressly recognized as having any bear- 
ing on the allocation of jurisdiction. 

comes known, it is a 'disorder' the nature of which is to affect the 
community at large, and consequently to invoke the power of the local 
government whose people have been disturbed by what was done. The 
very nature of such an act is to disturb the quiet of a peaceful com- 
munity, and to create, in the language of the treaty, a 'disorder' which 
will 'disturb tranquility and public order on shore or in the port.' " 
See also People v. Wong Cheng, 46 P.I. 729 (1922) holding that smoking 
opium on an English ship anchored 2Vz miles from shore was punishable 
under Philippine law; United States v. Look Chaw, 18 P.I. 573 (1910) 
holding that possession of opium in similar circumstances was not; and 
Ministere Public v. Kuti Gomes, Mixed Court of Appeal, Cairo, Egypt, June 
13, 1938, [1938-1940] Ann. Dig. 167 (No. 63), holding that having possession 
of and attempting to sell hashish on a British ship in Port Said was 
punishable under Egyptian law. 

That moral disturbance of the peace of the port is sufficient to give the 
littoral state a superior claim to jurisdiction is apparently accepted by the 
French and Italians. In the Tempest case (Jessup, op. cit. supra, note 12, 
at 147-48) the Court of Cassation in 1859 stated that the local authorities 
were properly concerned "when the act is of a nature to compromise the 
tranquility of the port, or when the intervention of the local authority is 
requested, or when the act constitutes a common law crime of such gravity 
as not to permit any nation to leave it unpunished." Jessup notes that on 
the facts this was dictum, but that it has seemingly been fully accepted in 
France. See also Gidel's comment on the Tempest, 2 Gidel, op. cit. supra, 
note 17, at 216-17. With respect to the Italian view, see also Jessup, at 156- 
57, citing the Redstar. 

Comment b to Article 53 of the Restatement, Foreign Relations Law, 
states, at p. 179, that: "The ["peace of the port"] doctrine does not refer to 
breach of the peace as such. Rather, it is usually interpreted to allocate 
the exercise of enforcement jurisdiction to the coastal state in those cases, 
relatively infrequent, in which the seriousness of a crime compels the 
coastal state to deal with it." 



CHAPTER IV 
WARSHIPS AND THEIR CREWS 

THE BASES OF IMMUNITY 

In a sense it is artificial to discuss the status of the crews of 
warships separately from that of land forces. Visits of warships 
to foreign ports have, however, been common in time of peace as 
well as war; on the other hand, visits of land forces on foreign 
territory have been relatively rare. Hence jurisdictional problems 
involving seamen have arisen much more frequently and judg- 
ments regarding appropriate solutions can be predicated on the 
extensive comments of text writers, judicial decisions and the 
practice of states. Again, the rules of international law governing 
the status of the crews of warships have developed quite in- 
dependently, without much reference to the problems of land 
forces. This development has, moreover, been influenced, to a 
degree not easily measured, by concepts and analogies (e.g., the 
fiction of extraterritoriality and the status of merchant seamen) 
which have played a lesser or no discernible role in the formula- 
tion of the rules with respect to land forces. This independent 
development may on the whole have been unfortunate since a 
higher degree of cross-pollination perhaps could have contributed 
to more satisfactory solutions in both areas. There are neverthe- 
less marked differences between the situation of the crews of war- 
ships in foreign waters and ports and that of land forces on 
foreign territory. These differences suggest that variations in the 
rules governing status may be desirable. It seems on the whole 
better to deal first with the status of the crews of warships, but 
to postpone extended discussion of some of the issues raised to 
later chapters. 

In foreign territorial waters and ports, warships and their 
crews enjoy more extensive exemptions from the jurisdiction of 
the littoral state than do merchantmen and their crews — exemp- 
tions that are properly described as immunities. Both the bases 
for and the range of these immunities are, however, disputed. 

The fiction of extraterritoriality enjoyed as great a vogue with 



56 

respect to warships as with respect to embassies and was in- 
fluential in shaping the law. The fiction has been vigorously at- 
tacked, and was expressly repudiated by the Privy Council with 
respect to a public vessel. 1 

Rejection of the fiction of extraterritoriality by no means im- 
plies there are no sound bases for the immunities of warships and 
of their crews. It does, however, require a more searching in- 
quiry into the factors which may support those immunities. 



1 The fiction is supported by Oppenheim, 1 Lauterpacht-Oppenheim, In- 
ternational Law 853 (8th ed. 1957), but the editor notes the decision of the 
Privy Council in Chung Chi Cheung v. The King, [1939] A.C. 160 (Pr. 
Council), 108 L.J.R. 17, a prosecution in a Hong Kong court for the murder 
of the captain of the Chinese Maritime Customs cruiser Cheung Keng, an 
armed public vessel, by a cabin boy when the vessel was in Hong Kong 
territorial waters. Both the captain and cabin boy were British nationals. 
In dismissing the cabin boy's appeal and holding that the Hong Kong court 
had jurisdiction on the ground that China had waived its jurisdiction, after 
noting the opposing views, that the immunity of warships is based on 
extraterritoriality or that "the immunities do not depend on an objective 
exterritoriality, but on implication of the domestic law," it was said at 167: 
"There Lordships entertain no doubt that the latter is the correct 
conclusion. It more accurately and logically represents the agreements 
of nations which constitute international law, and alone is consistent 
with the paramount necessity, expressed in general terms, for each 
nation to protect itself from internal disorder by trying and punishing 
offenders within its boundaries." 

After reviewing the authorities bearing on the point, the opinion con- 
tinued : 

"Their Lordships have no hesitation in rejecting the doctrine of 
exterritoriality * * * which regards the public ship 'as a floating portion 
of the flag-State.' However the doctrine of exterritoriality is expressed, 
it is a fiction, and legal fictions have a tendency to pass beyond their 
appointed bounds and to harden into dangerous facts. The truth is 
that the enunciators of the floating-island theory have failed to face 
very obvious possibilities that make the doctrine quite impracticable 
when tested by the actualities of life on board ship and ashore." Id. 
at 174. 

More than a century before, in Forbes v. Cochrane [1824] 2 B & C 448 
at 467 Best, J., in discussing the liability of certain British naval officers 
for refusing to restore slaves who had escaped to their ships from Florida, 
said: 

"I am decidedly of opinion that they were then no longer slaves. The 
moment they put their feet on board of a British man of war, not lying 
within the waters of East Florida (where, undoubtedly, the laws of that 
country would prevail), those persons who before had been slaves, were 
free." Cited, 2 Moore, International Law Digest, 578 (1906). 



57 

It has been said that "The immunities of a vessel of war belong 
to her as a complete instrument, made up of vessel and crew, and 
intended to be used by the state for specific purposes; the ele- 
ments of which she is composed are not capable of separate use 
for those purposes ; they consequently are not exempted from the 
local jurisdiction. " 2 This can be read to mean that a warship 
and its crew are so much an entity that their immunities neces- 
sarily have the same origin, nature, and scope. On the other 
hand, it can be read to mean that a warship and its crew serve 
functions so interdependent that there can be no adequate basis 
for an immunity for either if the situation does not involve some 
connection between vessel and crew. The latter, it is submitted, is 
the only acceptable sense in which the statement quoted may 
be read. 

A warship is a physical instrumentality of the state, designed, 
as a plane, tank or gun is designed, to make the use of force 
available in international disputes. The crew is an organized body 
of men, brought together, trained, and subjected to a common 
command and discipline to perform an assigned mission, sailing 
and fighting the ship. The warship gives form and substance, in 
terms of function, to the concept of a crew, as planes, guns and 
tanks do to the concept of an air force or an army. The crew's 
function is nevertheless separate and distinct from that of the 
warship, however interdependent those functions may be. Further, 
the immunities of a warship and of its crew can hardly be of the 
same nature and scope. A warship is incapable of committing a 
crime, though it may be the scene of a crime or the instrument 
with which a crime is committed, e.g., a violation of the naviga- 
tion laws. The only question of immunity which can arise with 
respect to a warship is by whom enforcement action may be 
exercised aboard her. Members of the crew may, however, com- 
mit crimes, on board or ashore, in the performance of duty or as 
private acts. Those acts may concern the flag state, the littoral 
state, or even the state of which the accused or the victim is a 
national. One should not limit in advance the analysis and ap- 
praisal of the possible reasons for according immunities to a 
warship and to its crew by the assumption they must have the 
same origin, nature and scope. 



2 Hall, International Law, 249 (8th ed., 1924). See also 2 Gidel, Droit 
International Public de la Mer, 267 (1934) . 



58 

Three reasons, or groups of reasons, have been assigned for the 
immunities commonly claimed for warships and their crews. These 
are in essence the same as those advanced for the immunity of 
land forces. They will be discussed at greater length later, but 
need to be mentioned here. The first reason stems from the ideas 
of the representative character of a warship, the independence 
of states and the mutual respect of sovereigns. 3 Although there is 
force in these ideas, it varies depending on whether one is speak- 
ing of the warship or of its crew. A warship is a public vessel, 
the property of a state, and as such may be said in a sense to have 
a representative character. 4 If this alone is not persuasive — and 
there is much recent authority that it is not — there are other 
factors. It is also an instrumentality designed for and devoted to 
one of the highest interests of the state, its security. If the in- 
dependence of states, not as an abstract principle but in sub- 
stantial terms, requires that any instrumentality of a state must 
be free from foreign interference, it is a warship. Reference to 
the mutual respect of sovereigns is less convincing with regard 
to a warship, though one can look upon it as a symbol, as the flag 
it flies is a symbol, of the state, to which respect is required. 

The same ideas have a quite different impact with respect to the 
crew. The captain and, in lesser degree, the other officers and the 
seamen are representatives of the flag state, exercising delegated 
powers. It cannot be said, however, that the independence of 
states or the mutual respect of sovereigns requires that every 
representative of a state, regardless of his capacity and activity, 
is entitled to immunity. Perhaps it could be argued that the cap- 
tain should be considered as entitled to immunity in terms of 
these concepts, but as to the other officers and the seamen this 
seems much more doubtful. 

The second reason given for the immunities of warships and 
their crews is military exigency, which is said to require that the 
flag state retain complete control over the vessel and its crew. 5 
The compelling character of this argument, applied to the war- 



* See 2 Gidel, op. cit. supra, note 2, at 265. 

* "We must observe here, with Wharton's commentator, Mr. Dana, that 
the immunities enjoyed by warships depend more on their public character 
than on their military character. They are accorded not to a warship but to 
a national ship, vested as such with a certain character of sovereignty." 
1 Calvo, Le Droit International 613 (3d ed., 1880). 

6 See 2 Gidel, op. cit. supra, note 2, at 266, and the authorities there cited. 



59 

ship, is evident. The threat to the security of the flag state would 
be real and substantial if the authorities of a foreign state could 
come on the vessel at will and exercise authority, necessarily in 
derogation of the commander's. Their mere presence on the war- 
ship could, because of the classified character of much of what is 
found on a warship, endanger the flag state's security. What is 
less clear is that military exigency requires the flag state to retain 
exclusive control over the crew, both in their official and un- 
official activities. While it is true that the flag state must retain 
the power to enforce discipline, free of the interference of the 
littoral state, it is far from obvious that subjecting the crew to 
the criminal jurisdiction of the littoral state, at least with re- 
spect to their unofficial activities ashore, necessarily involves an 
intolerable interference with the flag state's control. 

A third reason sometimes relied on for the immunities com- 
monly claimed is the implied consent of the littoral state, but, as 
Gidel remarks, this can hardly serve as an independent reason 
since, unless a reason of substance exists, there can be no reason 
for implying consent to any immunity. 6 

Against these factors, which argue for the immunity of war- 
ships and their crews, are to be weighed the reasons — in other 
circumstances generally recognized as compelling — for acknowl- 
edging the jurisdiction of the territorial state — "the paramount 
necessity," as the court said in the Chung Chi Cheung case, "for 
each nation to protect itself from internal disorder by trying and 
punishing offenders within its borders." 7 

IMMUNITY OF THE SHIP 

A warship on the high seas is completely immune from the 
jurisdiction of any state other than the flag state, 8 and much the 
same appears to be true of a warship passing through territorial 
waters. A warship, as a physical object, is likewise completely 
immune from the enforcement jurisdiction of the littoral state 
when in a foreign port, insofar as ordinary proceedings are con- 
cerned. 9 "No legal proceedings can be taken against her either for 



6 Ibid. 

7 Supra, note 1, at 167. 

8 Colombos, International Law of the Sea, 221 (4th ed., 1959) ; Hall, op. 
cit. supra, note 2, at 307. See Article 8, Convention on the High Seas, 13 
UST 2312, TIAS 5200. 

9 This was the specific point involved in The Schooner Exchange, 11 U.S. 
(7 Cranch) 116 (1812), although there the vessel entered in distress. Chief 



60 

recovery of possession, or for damages for collision or for a 
salvage reward, or for any other cause. 10 More important for 
present purposes, the littoral state may not exercise enforcement 
jurisdiction in any form on the vessel without the consent of the 
commanding officer. 11 This is true whether the act which occa- 

Justice Marshall, in holding the warship immune, said (p. 143) : 

"But in all respects different, is the situation of a public armed ship. 
She constitutes a part of the military force of her nation; acts under 
the immediate and direct command of the sovereign; is employed by 
him in national objects. He has many and powerful motives for pre- 
venting those objects from being defeated by the interference of a 
foreign state. Such interference can not take place without affecting his 
power and his dignity. The implied license, therefore, under which 
such vessel enters a friendly port, may reasonably be construed, and 
it seems to the court, ought to be construed, as containing an exemp- 
tion from the jurisdiction of the sovereign, within whose territory she 
claims the rights of hospitality." 

10 1 Lauterpacht-Oppenheim, op. cit. supra, note 1, at 853. See also 2 
Hackworth, Digest of International Law 409 (1940-4) ; Colombos, op. cit. 
supra, note 8, at 194-5; Art. 15, "Resolutions, Institute of International 
Law," 34 Annuaire 475. Hall points out that the doubt raised regarding 
the English rule by remarks of Lord Stowell in The Prins Frederik (1820), 
2 Dodson 484 and by Sir R. Phillimore in The Chariek, L.R. 4 Admiralty 
and Ecclesiastical Cases 93, were set at rest by the decision in The Con- 
stitution (1879), L.R. 4 P.D. 39, refusing an application for a warrant for 
the arrest of that American frigate and her cargo for a salvage claim, after 
the American government objected to the exercise of jurisdiction and the 
objection was supported by counsel for the crown. Hall, op. cit. supra, note 
2, at 248. See also 2 Moore, op. cit. supra, note 1, at 579; 1 McNair, In- 
ternational Law Opinions 92 (1956) opinion of 1871. Oppenheim remarks at 
p. 853 (footnote) that "this rule became universally recognized only during 
the nineteenth century." 

The Restatement, Foreign Relations Law, Sec. 67, affirms the rule but 
notes that the littoral state may assert a diplomatic claim. 

11 Surprisingly enough, this rule, which may now be regarded as firmly 
established, was at one time seriously questioned, particularly by the United 
States. The Attorney General ruled in 1794 that a writ of habeas corpus 
could be awarded where it was alleged an American subject was unlawfully 
detained on a British warship in an American harbor. Bradford, Attorney 
General, 1794, 1 Op. 47, 2 Moore, op. cit. supra, note 1, at 574. Moore's 
account cites Hall, for whose report of the same incident see Hall, op. cit. 
supra, note 2, at 238-9. Again in 1799, the then Attorney General ruled 
that civil or criminal process might be served upon a person on board a 
British warship lying in New York harbor. Lee, Attorney General, 1799, 1 
Op. 87, 2 Moore, pp. 574-5. Lawrence notes that: "These views were by no 
means confined to American lawyers. They seem to have been held by au- 
thorities of the highest repute in England. * * * Such doctrine as these 



61 

sions the assertion of jurisdiction took place on the vessel or 
ashore, and whether it was committed by an officer or member of 
the crew or a stranger to the vessel. 12 The right of a warship to 

[Lord Stowell's] would reduce the immunities of a public vessel almost to 
vanishing point. They would never probably have been acquiesced in on the 
continent of Europe. * * *" Lawrence, Principles of International Law, 
226-7 (7th ed. 1923). See also Hall, pp. 240-1. 

Chief Justice Marshall's opinion in The Schooner Exchange resulted, how- 
ever, in a reversal of the American position, and was undoubtedly largely 
responsible for the now seemingly general recognition of the view that en- 
forcement jurisdiction may not be exercised on a foreign warship. See 2 
Moore, op. cit. supra, note 1, at 578-79. 

Hyde states that "At the present time a foreign vessel of war and the 
occupants thereof are acknowledged to be exempt from local process." 2 
Hyde, International Law Chiefly as Interpreted and Applied by the United 
States, 826 (1945). The Restatement, Foreign Relations Law, Section 52, 
states the rule with a minor qualification. "Except as otherwise expressly 
indicated by the coastal state, its consenting to the visit of a foreign naval 
vessel * * * implies that it (a) waives the right to exercise aboard the 
vessel its enforcement jurisdiction * * * except to the extent necessary to 
prevent imminent injury to persons or property not involved in the opera- 
tion of the vessel * * *." 

The British authorities are reviewed by Hall, op. cit. supra, note 2, pp. 
243-44. His conclusions are somewhat more guarded, since the British posi- 
tion has not been entirely uniform. He notes that the French, German and 
Italian authorities support the complete immunity of warships from enforce- 
ment jurisdiction. Oppenheim states flatly that "No official of the littoral 
state is allowed to board the vessel without special permission of the com- 
mander." 1 Lauterpacht-Oppenheim, pp. 853-54. See also Colombos, op. cit. 
supra, note 8, at 227. And see 1 McNair, op. cit. supra, note 10, at 90, 
opinion of April 24, 1860, and at 91, opinion of March 7, 1862, both of which 
support the immunity but rely on the fiction of extraterritoriality, as do some 
of the early American authorities cited. See also Article 15 of the "Regula- 
tions Concerning the Legal Status of Ships and Their Crews in Foreign 
Ports," Institute of International Law, 1898, 17 Annuaire 277, and Art. 16 of 
the "Resolutions of the Institute, 1928," 34 Annuaire 214. 

United States Navy Regulations 1948, Article 0730, (GPO 1948), provide: 
"The Commanding Officer shall not permit his command to be searched by 
any person representing a foreign state nor permit any of the personnel 
under his command to be removed from the command by such person, so 
long as he has the power to resist." Cf. Article 0764, relating to examina- 
tions by foreign customs and immigration officials. 

12 "No occupant while remaining on board is subject to the local jurisdic- 
tion, notwithstanding his infraction of the local criminal code by an act 
committed on shore or taking effect there. * * * When a fugitive from justice 
is once received on board of a foreign vessel of war within the territorial 
waters of a State he is believed to be withdrawn from the local jurisdiction." 



62 

give asylum to a fugitive has been much debated, but even if 
there is no such right, the local authorities are still barred from 
entering the vessel and taking the fugitive. 13 

The wide recognition of these immunities of a warship suggests 
that states generally regard the reasons supporting them, sum- 
marized above, as conclusive. It is misleading, however, to re- 
gard them as immunities from criminal jurisdiction — to which 
only the last has any relevance in the usual sense. These immuni- 
ties are better summarized as together making the warship in- 
violable. 

IMMUNITY— ACTS ON BOARD 

A. The Crew 

Whether the littoral state can extend its criminal law to apply 
to acts which occur on the warship — granted it may take no 
steps to enforce its law there — is a more difficult question. Re- 
jection of the fiction of extraterritoriality implies that there is no 
disability of the littoral state merely because the act takes place 
on a warship, just as there is no such disability merely because 
an act occurs in an embassy. Nor does the inviolability of the 
vessel appear to be a basic factor. Effective enforcement by the 

2 Hyde, op. cit. supra, note 11, at 826-29. "Even individuals who do not be- 
long to the crew but who, after having committed a crime on the territory of 
the littoral State, have taken refuge on board, cannot be forcibly taken off 
the vessel * * *." 1 Lauterpacht-Oppenheim, op. cit. supra, note 1, at 854. 
See also, Orfanidis v. Ministere Public, Mixed Court of Cassation, Egypt, 
May 31, 1943, [1943-1945] Ann. Dig. 141 (No. 38) ; Anne and others v. 
Ministere Public, Court of Cassation, Egypt, Dec. 13, 1943, [1943-1945] 
Ann. Dig. 115 (No. 33) ; Ministere Public v. Korkoris, Court of Cassation, 
Egypt, Dec. 11, 1944, [1943-1945] Ann. Dig. 120 (No. 34). And see Ex 
parte Sulman, Supreme Court of South Africa, Cape of Good Hope Provincial 
Division, July 15, 1942, [1941-1942] Ann. Dig. 247 (No. 64), applying the 
doctrine to a merchant vessel requisitioned by the Netherlands government 
in wartime. 

18 "[I]t is wrong for a ship to harbour a criminal or a person charged 
with non-political crimes. If, however, such a person succeeds in getting on 
board, and is afforded refuge, he cannot be taken out of the vessel. No 
entry can be made upon her for any purpose whatever." Hall, op. cit. supra, 
note 2, at 246. 

Article 21, "Resolutions, Institute of International Law," 1898, 17 An- 
nuaire 278, reads: "Whatever shall be the status of persons on board a 
war-ship, even when they have been wrongly received, if the commander 
refuses to give them up, force may not be resorted to to ensure their recap- 
ture, or visit and search exercised to that end." 



63 

littoral state may require on-the-spot investigation and the right 
to summon witnesses, both of which may be prevented or made 
more difficult by the vessel's inviolability. This is at best, how- 
ever, an argument of a secondary order. Fundamentally the dis- 
ability, if it exists, must stem from the character of the actors, 
the nature of their actions, and the relationship of both to the 
warship, the flag state and the littoral state. 

In the sense that the captain and crew of a warship are in 
general required to obey the local law, there is no general dis- 
ability of the littoral state to prescribe its application. Specifi- 
cally, there is no disability, or correlative immunity, with respect 
to acts which take effect externally to the ship, at least those in 
the normal range of laws and regulations relating to navigation, 
anchorage, quarantine, sanitation and the like. 14 When such laws 
or regulations are violated, the littoral state may apply for re- 
dress to the government of the flag state, or, in extreme cases, 
order the ship out of its territory, or forcibly expel it, but 
ordinary remedies are not available. 15 Such violations are, of 



14 2 Hyde, op. cit. supra, note 10, at 827, 1 Lauterpacht-Oppenheim, op. cit. 
supra, note 1, at 855; Colombos, op. cit. supra, note 8, at 227; 2 Gidel, op. cit. 
supra, note 2, at 255. Mr. Hill, Acting Secretary of State, to Secretary of 
the Navy, Oct. 6, 1899, M.S. Dom. Let. 399, 2 Moore, op. cit. supra, note 1, 
at 514; Memo of Mr. S.C. Lemly, Judge Advocate General, U.S.N., com- 
municated to Mr. Moore, Third Assistant Secretary of State, July 6, 1891, 
id., p. 584. Hall, op. cit. supra, note 2, at 246, affirms the duty to obey such 
laws and regulations, subject "to the exception, it is probable, of instances 
only in which there is a special custom to the contrary." 

15 See 1 McNair, International Law Opinions 93, 94 (1956), regarding the 
case of the Enterprise, an armed vessel of the United States used as a 
training ship, which entered a Bermuda harbor and, owing to a misunder- 
standing, committed a breach of the quarantine regulations. The command- 
ing officer was fined £10 and costs but he protested and the fine was not 
enforced. The Law Officers to whom the matter was referred expressed the 
opinion (December 17, 1897) that the vessel and her officers could not claim 
exemption from the regulations, but "It does not, however, follow that the 
vessel and her officers are subject to the jurisdiction of the local courts. * * * 
[I]n our opinion the officer commanding such man-of-war is not liable to 
proceedings in the local Courts, in respect of any act done by him in the 
management of the vessel. 

"The duty of observing the regulations of the port is one of international 
obligation. The vessel is admitted on the implied terms of observing such 
regulations. If they are broken she may be expelled — if such an extreme 
step be necessary for the safety of the port. Diplomatic representation may 
be made to the Government of the country to which the vessel belongs, and 



64 

course, the acts of individuals rather than of vessels, and the 
basis of the individuals' immunity is not clear, assuming that any 
attempt to take enforcement action against them is made on 
shore. A persuasive argument can be made in terms of military 
exigency. 16 The same reason, fortified because there is at least 
no physical disturbance of the peace of the port, supports an 
immunity with respect to acts done on board in the performance 
of duty. 

Even as to private acts, military exigency may well provide an 
adequate basis for immunity of the crew. The members of the 
crew, so long as they are on board, can be said to be so much a 
part of an organized body of men charged with handling the ship 
that it would interfere with performance of the ship's mission if 
the littoral state asserted jurisdiction over their conduct, even 

if anything like a right to disregard such regulations were asserted, the 
foreign Government might be informed that its vessels could not be admitted." 

See, generally, Colombos, op. cit. supra, note 8, at 227. 

16 The statement made in Comment c, Sec. 35 of Tentative Draft No. 2 of 
the Restatement, Foreign Relations Law: "For the performance of official 
duties aboard a vessel it is possible that a doctrine of non-liability might 
develop to prevent the exercise of territorial jurisdiction against certain 
naval personnel while ashore" is not repeated in the final version. "[C]ourts 
will not assume jurisdiction over such vessel or its officers, while acting as 
such, but leave controversies arising out of the acts of the vessel, and its 
officers, while acting in their official character, for settlement through 
diplomatic channels." United States v. Thierichens, 243 Fed. 419, 420 
(D.C.E.D. Pa., 1917). 

In The Owner of the Junk "Tung On Tai" etc. v. Gove; The Alexander, 
1 Hong Kong L.R. (1906) 122, 2 Hackworth, op. cit. supra, note 10, at 419- 
20, the United States naval collier Alexander was in collision with a Chinese 
junk in Hong Kong waters. A civil suit against the commander of the 
Alexander was dismissed, upon motion of the Attorney General, on the 
ground the ship was immune and the immunity extended to the commander. 
The court said: "* * * I therefore think that the Plaintiff's contention 
cannot be maintained, and that the principles enunciated in The Parle- 
ment Beige as applicable to foreign public ships, certainly cover the 
case of the officers and crew on board, because they are under the 
control and in the employ of a foreign Sovereign in national objects, 
and because the jurisdiction of the court, if exercised, must divert their 
public service from its destined public use * * * This * * * immunity 
* * * exists only so long as he [the naval officer] forms part of the machine 
known as a vessel of war, and commits the act of negligence with or by 
means of such vessel, and when it is either in whole, or in part, under his 
control. But whether such immunity can be claimed by the officer himself 
I very much doubt." See also the case of The Enterprise, supra, note 15. 



65 

though at the moment they are not technically on duty, in the 
four hours on, eight hours off sense, or acting in performance of 
duty. The fact that an act occurs on board is, in other words, 
relevant in terms of the military exigency which supports the 
crew's immunity, even though the crew do not share the war- 
ship's immunity. Moreover, the crew while on the vessel are 
under the direct and immediate command and disciplinary au- 
thority of the commander. If any weight is to be given to the 
argument that the assertion of jurisdiction by the littoral state 
would interfere with the maintenance of discipline and the exer- 
cise of needed control by the commander, it should be in these 
circumstances. Merchant seamen are, at least on the basis of 
comity, accorded an exemption in similar circumstances, subject 
only to the qualification that the peace of the port is not dis- 
turbed, no stranger is involved, and the local authorities are not 
asked to intervene. Cumulatively all of the factors which dis- 
tinguish members of the crew of a warship from merchant sea- 
men would seem to justify saying that they should be accorded 
immunity for acts on board the vessel. Presumptively the littoral 
state has jurisdiction over acts that occur on a warship, as it does 
over those that occur on a merchant vessel, when the vessels are 
in its waters. But the same balancing of interests of the flag state 
and the littoral state which justifies only the according of a quali- 
fied exemption for merchant seamen can be said to require the 
recognition of complete immunity for the crew of a warship. 17 
Several writers state categorically that the flag state has ex- 
clusive jurisdiction over acts which occur on the vessel, 18 and in 



17 Cf. 2 Gidel, op. cit. supra, note 2, at 290-1. 

18 Oppenheim states, 1 Lauterpacht-Oppenheim, op. cit. supra, note 1, at 
854, that "Crimes committed on board by persons in the service of the vessel 
are under the exclusive jurisdiction of the commander and the other home 
authorities." But it should be remembered that he accepted the fiction of 
extraterritoriality of warships. Colombos, op. cit. supra, note 8, at 234, 
says that "The commander of a man of war or public ship in a foreign 
port or waters retains complete jurisdiction over the ship and her crew, 
thus excluding entirely the jurisdiction of the territorial sovereign. The 
local jurisdiction is equally excluded in the case of disturbances on board 
her, these having to be dealt with by her commander alone." Hall, op. cit. 
supra, note 2, is more guarded, saying at 245: "Exceptions to this obliga- 
tion [to obey the local law] exist, in the case of acts beginning and ending 
on board the ship and taking no effect externally to her, firstly in all 
matters in which the economy of the ship or the relations of persons on 
board to each other are exclusively touched, and secondly to the extent that 



66 

Chung Chi Cheung v. King, 19 the court took the same line, though 
it should be noted that there the crime took place while the vessel 

any special custom derogating from the territorial law may have been es- 
tablished, — perhaps also in so far as the territorial law is contrary to what 
may be called the public policy of the civilized world." See also 2 Gidel, op. 
cit. supra, note 2, at 292. 

Article 16 of the "Resolution of the Institute of International Law, 1898," 
17 Annuaire 277, reads: "Crimes and offenses committed on board these 
ships or on the boats belonging to them, whether by members of the crew, 
or by any others on board, shall come under the jurisdiction of the courts 
of the nation to which the ship belongs and shall be judged according to 
the laws of that nation, whatever be the nationality of the perpetrators or 
the victims. 

"Whenever the commander shall deliver the delinquent over to the local 
authorities, the latter shall regain the jurisdiction which under ordinary 
circumstances would belong to them." 

Article 18 of the "Resolutions of 1928," 34 Annuaire 742, reflects, however, 
a shift in emphasis from jurisdiction to prescribe to jurisdiction to enforce. 
"Crimes and offenses committed on board warships, whether by members of 
the crew or by any other persons on board, are withdrawn from the 
exercise of the competence of the courts of the State of the port, as long as 
the ship is there, whatever be the nationality of the perpetrators or the 
victims. Nevertheless, if the commander delivers the delinquent to the 
territorial authority, the latter shall regain the exercise of its normal com- 
petence." 1 McNair, op. cit. supra, note 15, at 94, refers to an 1881 opinion 
which "advised that a local Italian pretore had no right to hold an inquest 
upon the cause of the death of a British seaman occurring on board a 
British ship of war while in the port of Naples, though it was his duty, 
once the body was transferred from the ship to the land, to satisfy himself 
before permitting burial that the death had not resulted from a crime 
committed within his jurisdiction on land." 

Tentative Draft No. 2 of the Restatement, Foreign Relations Law, states 
that "The question whether officers and crewmen are subject to enforce- 
ment jurisdiction while on shore with respect to conduct aboard a vessel is 
one not answered by authoritative decisions or precedents from state prac- 
tice." Sec. 35, Comment c, at 107. This is not a statement that the jurisdic- 
tion exists, and the officers and crew are not immune, but it does suggest 
that the question is open and the absence of such jurisdiction in the littoral 
state cannot be assumed. The statement is not repeated in the final version of 
the Restatement. 

19 Supra, note 1. The court said at 174, 176: "Immunities may well be 
given in respect of the conduct of members of the crew to one another on 
board ship. If one member of the crew assaults another on board, it would 
be universally agreed that the local courts would not seek to exercise juris- 
diction, and would decline it unless, indeed, they were invited to exercise it 
by competent authority of the flag-nation. * * * In the present case the 
question arises as to the murder of one officer and the attempted murder 



67 

was in the territorial waters of Hong Kong, not in port. The 
issue has been debated whether the littoral state can claim at least 
concurrent jurisdiction where the accused or the victim or both 
are, though members of the crew, nationals of the littoral state. 
The weight of authority on this issue supports the view that 
nationality is not a relevant factor. 20 



of another by a member of the crew. If nothing more arose the Chinese 
Government could clearly have had jurisdiction over the offense * * *." See 
also The Lone Star, Supreme Federal Court, Brazil, Nov. 22, 1944, [1947] 
Ann. Dig. 84 (No. 31). 

20 Hall appended a footnote to the comment quoted, note 18, reading: "The 
case which, however, would be extremely rare on board a ship of war, of a 
crime committed by a subject of the state within which the vessel is lying 
against a fellow subject, would no doubt be an exception to this. It would 
be the duty of the captain to surrender the criminal." Literally, the qualifica- 
tion suggested is applicable to members of the crew as well as strangers to 
the vessel. 

As so read, the qualification was rejected in the Chung Chi Cheung case, 
supra, note 1, at 176, where both the murderer and the victim were British 
subjects: "It is difficult to see why the fact that either the victim or the 
offender, or both, are local nationals should make a difference if both are 
members of the crew." 

The court quoted at 172 from the memorandum of Sir Alexander Cock- 
burn, Lord Chief Justice, included in the "Report of the Royal Commission 
on Fugitive Slaves," 1876, Command 1516, p. xiii: 

"The rule which reason and good sense would, as it strikes me, prescribe, 
would be that, as regards the discipline of a foreign ship and offences com- 
mitted on board as between members of her crew towards one another, 
matters should be left entirely to the law of the ship, and that should the 
offender escape to the shore, he should, if taken, be given up to the com- 
mander of the ship on demand, and should be tried on shore only if no such 
demand be made. But if a crime be committed on board the ship upon a 
local subject * * * the criminal * * * should be given up to the local au- 
thorities." 

The court commented that "[T]he Lord Chief Justice assumed that even 
if a crime be committed on board by one member of the crew on another, 
should the offender escape to shore and no demand be made for his return, 
the territorial court would have jurisdiction. Their Lordships doubt whether, 
when he was dealing with the case of a crime committed on board of a 
local subject, he had present to his mind the possibility of the local subject 
being a member of the crew." 

Hall's comment posited the case where both the criminal and the victim 
were subjects of the littoral state, and that was the actual situation in 
Chung Chi Cheung. The case in which the criminal only is a subject is, of 
course, weaker, and that in which the victim only is a subject is weaker still. 

See also 2 Gidel, op. cit. supra, note 2, at 292: "If the author of the un- 



68 

B. Strangers 

No reason suggests itself why a stranger to the vessel who 
commits an offense aboard a warship in a foreign port should 
enjoy any immunity from the jurisdiction of the littoral state. 
Fundamentally, the littoral state has jurisdiction on the terri- 
torial principle, and an affirmative reason must exist to deprive it 
of its competence. The fact the place of the offense was a foreign 
warship hardly seems adequate, unless one reverts to the fiction 
of extraterritoriality. No such immunity is recognized with re- 
spect to visitors to a merchant vessel or an embassy, and no in- 
terest of the flag state is apparent which would justify giving 
strangers to a warship a superior status. Recognition of an 
obligation of the commander to deliver such an offender to the 
local authorities seems desirable, 21 although the flag state should 
be recognized as having a secondary competence. 

lawful act is a member of the crew, the flag state has exclusive jurisdiction. 
The quality of member of the crew predominates over all other circum- 
stances, even if the individual author of the offense is a national of the 
riparian state." 

21 Writers have on occasion either drawn no distinction between the crew 
and others on board, or considered both entitled to the same immunity. De 
Martens, however, argued long ago that : 

"No juridical reason exists for declaring that in all cases crimes com- 
mitted on warships are excluded from the jurisdiction of the local au- 
thorities. One can admit that the commander of the ship and the crew 
should not be subject to such authorities. But for what reason should 
this privilege be extended to individuals who, forming no part of the 
crew, have committed a crime on board a warship? The exterritoriality 
of such ships, thus understood, would become up to a certain point con- 
trary to their own security and would be in opposition to the rights and 
the dignity of States in whose water they sailed." 2 De Martens, 
Traite de Droit International 337 (1886). 
He notes that the opinion expressed was not that of the majority of writers 
on international law, but it has the support of Gidel, op. cit. supra, note 2, at 
293-4, although Gidel would recognize the concurrent jurisdiction of the 
flag state where the victim was a member of the crew. 

Colombos takes the position, op. cit. supra, note 8, at 234, that: "If a 
crime is committed on board a warship by a person not a member of the 
ship's crew and not belonging to her, the commanding officer may with 
propriety hand the accused over to the local authorities, but he cannot be 
compelled to do so. The only exception appears to be in the case of a 
crime committed on board the warship by a national of the territorial State 
against a fellow-subject. In such a case, which must be extremely rare, it 
would be the duty of the commander to surrender the criminal to the local 
authorities," citing Article 18 of the Stockholm resolutions, see footnote 18, 



69 

IMMUNITY OF THE CREW— ACTS ON SHORE 

Any blanket of immunity that the officers and crew of a war- 
ship may enjoy on board does not cover them on shore. All of 
the crew of a warship, including, seemingly, the commander, are 
subject to the jurisdiction of the littoral state while ashore in 
pursuit of their private interests. 22 The only dispute is over 

supra. It is submitted that the obligation of the commander to deliver the 
offender to the local authorities should be recognized in all cases, on the 
territorial principle alone, without requiring reinforcement either from the 
nationality or the passive personality principle. So long as it is recognized 
that the littoral state can not exercise enforcement jurisdiction on the 
vessel — breach of the commander's obligation to deliver the accused could 
be sanctioned only through diplomatic channels — the interests of the flag 
state would appear to be adequately safeguarded. 

The court in Chung Chi Cheung v. King, supra, note 1, at 174, recognized 
the jurisdiction of the territorial state, but did not comment on the duty of 
the commander to deliver the offender to the local authorities, saying : 

"But if a resident in the receiving State visited the public ship and 
committed theft, and returned to shore, is it conceivable that when he 
was arrested on shore, and shore witnesses were necessary to prove 
dealings with the stolen goods, and identify the offender, the local courts 
would have no jurisdiction? What is the captain of the public ship to do? 
Can he claim to have the local national surrendered to him? He would 
have no claim to the witnesses, or to compel their testimony in advance 
or otherwise. He naturally would leave the case to the local courts. 
* * * The result of any such doctrine [extraterritoriality] would be not 
to promote the power and dignity of the foreign sovereign, but to lower 
them by allowing injuries committed in his public ships or embassies 
to go unpunished." 

Article 9 of the Montevideo Treaty on International Penal Lavj of March 
19, 1940 provides: "If only individuals who are not members of the crew of 
the war vessel or aircraft participate in the commission, on board, of such 
acts, the trial and punishment shall proceed in accordance with the laws of 
the State in whose territorial waters the vessel or aircraft is found." See 
The Lone Star, supra, note 19. 

United States Navy Regulations 1948 provide in Article 0732: 
"1. The commanding officer shall keep under restraint or surveillance, 
as necessary, any person not in the armed services of the United States who 
is found under incriminating or irregular circumstances within the command, 
and shall immediately initiate an investigation. 

"3. If the investigation indicates that such person has committed or at- 
tempted to commit an offense punishable under the authority of the com- 
manding officer, the latter shall take such action as he deems necessary." 

12 "The officers of a vessel of war belonging to a friendly foreign nation 
can not set up extraterritoriality when unofficially on shore in a port in 



70 

whether they are subject to such jurisdiction while ashore in a 
duty status. 



whose harbor their vessel is temporarily moored." 2 Moore, op. cit. supra, 
note 1, at 585, citing Mr. Randolph, Secretary of State, to Mr. Hammond, 
July 23, 1794, 7, M.S. Dom. Let. 55; Mr. Buchanan, Secretary of State, to 
Mr. Leal, Brazilian charge, August 30, 1847, S. Ex. Doc. 35, 30 Cong. 1 
sess. 29, id., at 586, concerning the arrest in Rio de Janeiro of a lieutenant 
and three sailors of the U.S.S. Saratoga, when one man "drew his knife on 
his fellow sailor whilst on shore." "* * * any person * * * attached to such 
man of war, charged with an offence on shore, is liable to arrest therefor, in 
the country where the offence may have been committed." Mr. Fish, Secre- 
tary of State, to Commodore Case, January 27, 1872, 92 M.S. Dom. Let. 322, 
2 Moore, p. 588; the Forte, 5 Moore, International Arbitrations 4925-28 
(1898), 2 Moore, op. cit., supra, note 1, at 587, in which Leopold of Belgium, 
as arbitrator, held for Brazil in a dispute with Great Britain over the arrest 
of a chaplain, lieutenant and midshipmen of the Forte ashore in Brazil. See 
also Japan v. Smith and Stinner, High Court of Osaka (Sixth Criminal 
Division), Nov. 5, 1952, [1952] Int'l L. Rep. 22 (No. 47), in which Japan 
asserted jurisdiction over British sailors from the warship Belfast for an 
offence committed ashore, although the warship had been engaged in action 
in Korean waters until just before her visit to Kobe. 

Of particular interest is the incident reported in 2 Hackworth, op. cit. 
supra, note 10, at 422, citing Ambassador O'Brien to Secretary Knox, tele- 
gram of June 5, 1911, and Mr. Knox to Mr. O'Brien, telegram of June 7, 
1911, M.S. Department of State, file 394.112 At S/-, 3. Hackworth's re- 
port states : 

"On June 5, 1911, the Ambassador in Japan reported to the Depart- 
ment of State the murder of one United States naval enlisted man by 
another in a United States naval hospital ashore. The Ambassador 
stated that he informally requested of the Japanese Foreign Office that 
American naval officials be allowed to take jurisdiction, but that the 
request had been refused. The Department, on June 7, 1911, instructed 
the Ambassador that 'Unless the practice of other nations is contrary, 
you should concede jurisdiction to Japan, at the same time indicating 
that this Government would prefer by courtesy to try the prisoner.' 
The man was later tried and convicted by a Japanese court." 
It should be noted that both the murderer and his victim were Americans 
and enlisted men in the Navy; it does not appear from the report, but the 
murderer may have been on duty; and, finally, the murder occurred in a 
United States naval hospital. See also Colombos, op. cit. supra, note 8, at 
236 ; 2 Gidel, op. cit. supra, note 2, at 297. 

See the discussion regarding the status of the commander, 2 Gidel, pp. 
299-300, citing the comments of other writers. It is Gidel's conclusion that 
one can not demonstrate the existence of a custom giving special status to 
the commander, and his judgment that the commander should, in principle, 
be equally subject to the local jurisdiction. See United States v. Thierichens, 



71 

Such respected authorities as Hyde 23 and Hall 24 would deny 
the immunity even in this case, but other writers — perhaps the 



243 Fed. 419 (D.C.E.D. Pa., 1917), in which the defendant was the com- 
manding officer of the German cruiser Prinz Eitel Friedrich. 

The Restatement, Foreign Relations Law, Comment c to Sec. 52, p. 177, 
states that "The rule stated in this Section has no application to the person- 
nel of a vessel while they are ashore," and Illustration 3, following the 
Comment, states that the captain of a naval vessel is subject to the en- 
forcement jurisdiction of the littoral state if he "negligently kills Z while 
driving a car on shore in the course of making an official call." 

" "The exemption enjoyed by persons officially connected with and on 
board of a foreign public vessel does not accompany them after they have 
left the ship or its tenders and are on shore. * * *. 

"Officers and crews of foreign vessels of war, who commit offenses while 
ashore, are generally subject to local prosecution. * * *." 

"Possibly the commander of a vessel of war who goes ashore in order to 
accomplish an end directly connected with or incidental to the public business 
which brought his vessel into the port, ought not, while so engaged, to be 
amenable to local process, provided he does not, in the course of his errand, 
violate the local law. It is believed he should not, for example, be arrested 
for an offense committed during a previous visit, or be served with process 
in a civil suit charging him with tortious conduct at any prior time. It 
is not known, however, that such an exemption within the limits stated 
has been claimed or granted by the United States." 2 Hyde, op. cit. supra, 
note 10, at 830. No reason is advanced for the suggested distinction be- 
tween past and present offenses. 

See also the Restatement, Foreign Relations Law, Comment c to Sec. 52, 
and Illustration 3, p. 177. 

2i Hall, op. cit. supra, note 2, at 249. But an editor's footnote says : 
"Opinion on this point is divided. Some writers adopt the rule stated in the 
text unqualifiedly. (J.B. Moore, Dig. II Sec. 256; Hannis Taylor, Sec. 261; 
Hyde, International Law, i, Sec. 255). Others modify it by requiring notifica- 
tion of the arrest of a member of the crew to the ship's commander and 
giving him the power of demanding that local jurisdiction shall be so 
exercised as to meet the requirements of moral justice, e.g., through consular 
intervention (Ortolan, Dip. de la Mer, i, 268; Phillimore, i, Sec. 346). 
Others draw a distinction between the purposes for which the landing took 
place; if it were for an object connected with naval duty, the members of 
the crew should be immune; if for some other object, such as recreation, he 
should not be (Perels, 121-5; Bonfils, Sec. 620). This appears to be the 
view of most writers (Oppenheim, i, Sec. 451). The case of the Forte is 
inconclusive. * * * The practice in Great Britain appears to be that in 
case of serious offences the offender is dealt with by the local authorities, 
but in case of minor offences, such as drunkenness, the offender is simply 
detained until he can be handed over to a superior officer of the ship to 
which he belongs, but this is done as a matter of courtesy." 



72 

majority — would recognize it. 25 The former have the support of 
a majority of the Supreme Court of Canada, 26 the latter of the 
Mixed Court of Cassation of Egypt, though these decisions can be 
distinguished because they arose in wartime. 27 



25 "The position of officers and crew when ashore is not quite free from 
doubt. The practice generally followed is to apply the principle of exterri- 
toriality to them when they are on land in uniform and in an official capacity 
connected with the service of their ship. But if they are ashore not in uni- 
form or on official business, they are subject to the territorial jurisdiction of 
the littoral State, which is entitled to prosecute them for any crimes against 
the local laws. In the case of minor offences, it is usual to hand over, on 
grounds of international comity, the wrongdoers to the commanding officer 
for him to deal with, but there is no obligation to do so." Colombos, op. cit. 
supra, note 8, at 236. Oppenheim notes that "the position of the commander 
and crew of a man-of-war in a foreign port when they are on land is con- 
troversial. The majority of writers distinguish between a stay on land in the 
service of the man-of-war and a stay for other purposes." 1 Lauterpacht- 
Oppenheim, op. cit. supra, note 1, at 855. 

26 Sir Lyman P. Duf t, C.J.C., with whom Hudson, J., concurred, concluded : 
"The members of a crew of an armed ship of the United States are 

exempt from the jurisdiction of the criminal courts of Canada in respect of 
an offence committed on board ship by one member of the crew against 
another member of the crew and generally in respect of acts which exclu- 
sively concern the internal discipline of the ship. As regards offences com- 
mitted on shore by members of the crew, they are not exempt from the 
jurisdiction of the criminal courts of Canada, but the criminal courts of 
Canada do not exercise jurisdiction in respect of such offences where the 
offence is one committed by one member of the crew against another mem- 
ber of the crew, except at the request of the commander of the ship." 
Reference Re Exemption of U.S. Forces from Canadian Criminal Law 
[1943], 4 D.L.R. 11, 25. Rand, J., concurred on this point. Ibid., p. 51. 

37 Triandafilou v. Ministere Public, Mixed Courts in Egypt Court of Cassa- 
tion, June 29, 1942, 39 A.J.I.L. 345. Triandafilou, a Greek subject, was a 
sailor on the torpedo boat destroyer Panther of the Greek fleet anchored in 
Alexandria. He came ashore to purchase food for the needs of the ship, 
with permission to return on board by midnight. On coming out of a bar on 
the Place Mohamed Aly in a state of intoxication some minutes before mid- 
night, he struck with a dagger an agent of the local police who, with the 
purpose of calming a disturbance which had broken out among other per- 
sons, was about to conduct such other persons to the station. 

The court noted that it was pertinent "to distinguish between the im- 
munity which the vessel itself enjoys, as representing the country whose 
flag it flies, and the personal immunity which the crew would enjoy, 'by way 
of an extension/ which would result in withdrawing the crew to a greater 
or less degree from the territorial jurisdiction even when they had gone on 
land * * *." After commenting on the conflict among writers, noting Art. 
20 of the "Resolutions of the Institute," which "can be considered as stating 



73 

The language of the Mixed Court of Cassation that "it is in 
short the immunity of the vessel which projects itself beyond the 
vessel for the realization of its own ends" may have been un- 
fortunate. It appears to mean simply that so long as members of 
the crew are on duty, even though they may be on shore, there is 
a functional basis for their immunity. This is a position for 
which support can be found. The immunities of diplomats are of 
even wider scope, and are said to be justified on a functional 
basis. The opposing view need not depend on the theory the war- 
ship and crew are one, and cannot be immune when physically 
separated. It can stem from the belief that compelling military 
need for the immunity of the crew can exist only if they are on 
the warship. At least it can be said that the primary functions of 
the crew are performed on board, and the military need for their 
immunity is more clearly discernible when they are on board. 

Gidel makes the point that the difficulties of determining 
whether an act was an act "de service" may explain why im- 
munity for such acts on shore has not had wider support. 28 Later 
decisions of the Mixed Courts of Egypt, limiting the doctrine of 
the Triandafilou case that "these words should be interpreted not 

the latest holding of international law on the subject" and denying that, as 
a member of a visiting force, the accused was protected by any general 
immunity, either under international law or because of the Anglo-Egyptian 
treaty, the court said that "the sole question which presents itself * * * is 
that of knowing whether Triandafilou was or was not carrying out a mis- 
sion under instructions at the moment when he committed the aggres- 
sion * * *." In deciding that he was, and ordering Triandafilou set at 
liberty, it said : 

"Whereas if the members of the crew of a warship enjoy the immunity 
from jurisdiction of the vessel itself when they are on shore this is only 
true in so far as they can be considered as agents for executing orders 
which are given them in the interests of the vessel; whereas it is in short 
the immunity of the vessel which projects itself beyond the vessel for the 
realization of its own ends; whereas such is the basis of the principle which 
withdraws them from the local jurisdiction when they are on duty; whereas 
it follows that these words should be interpreted not with reference to the 
activities of him who has received the order but with reference to him who 
has given the order and who must take cognizance of its execution; and 
whereas in the instant case the sailor Triandafilou did not return on board 
to give an account of his commission, and whereas he was therefore still on 
duty when he committed the aggression with which he was charged; whereas 
it results from these considerations that the first ground for the appeal is 
well founded. * * *" 

88 2 Gidel, op. cit. supra, note 2, at 295. 



74 

with reference to the activities of him who has received the order 
but with reference to him who has given the order/' illustrate the 
difficulty. 29 There is a discernible distinction — though one not al- 
ways easy to draw in a given situation — between an act done 
while on duty and one done in the performance of duty. The 
exercise of criminal jurisdiction by the receiving state in the 
latter situation involves a much more direct interference with the 
sending state's conduct of its affairs, and poses the dilemma of 
conflicting duties for the actor. There is need, then, for more 
precise analysis before the conflicting interests of the sending and 
receiving state can be weighed. It should not be forgotten, how- 
ever, that a criminal offense on shore creates more than a moral 
disturbance of the peace of the port, so that the littoral state has 
a greater interest in asserting jurisdiction than if it takes place 
on the vessel. 30 

It has been pointed out that a party of sailors on duty ashore 
may have the status of an "organized force" of "friendly force," 
with whatever added claim to immunity this may entail. 31 The 



29 Gounaris v. Ministere Public, Egypt, Mixed Court of Cassation, May 10, 
1943 [1943-1945] Ann. Dig. 152 (No. 41). 

80 No distinction is apparently made on the basis of the nationality of the 
victim, but in practice this may be crucial. Thus: "In September 1926, when 
a seaman of the U.S. destroyer Sharkey died in England as a result of 
wounds received in a shooting affray with another seaman of the U.S. 
destroyer Lardner in the outskirts of Gravesend, the British Government 
consented, on the application of the American Ambassador in London, and 
as a matter of international courtesy, to hand over the culprit to the Ameri- 
can authorities, although he had already been convicted by a coroner's jury 
of 'wilful murder.' In the statement issued by the Home Secretary, the 
opinion of the British Government was expressed that 'in the special cir- 
cumstances of this case, a United States tribunal would be the more con- 
venient Court,' particularly in view of the 'assurance given by the Ambassa- 
dor' that the guilty person would be dealt with in accordance with the U.S. 
Navy Court-martial Regulations. 'In coming to this decision, the Secretary 
of State had in mind the fact that both the accused and the injured seaman 
belonged to the U.S. Navy and that no British subject was directly con- 
cerned'." Colombos, op. tit. supra, note 8, at 236. 

81 Hyde states (2 Hyde, op. tit. supra, note 10, at 830), that "If a body of 
sailors under the command of an officer is permitted to land as an organized 
force, as for the purpose of taking part in a local parade, the members are 
doubtless exempt from the local jurisdiction, not, however, on account of 
their connection with a public vessel, but because they constitute an 
organized force of a foreign State permitted to enter the national domain," 



75 

distinction between such a party and an individual sailor ashore 
on duty is significant, particularly if the specific consent of the 
littoral state to the landing of the party, e.g., a shore patrol, is 
required. This should not, however, be viewed as an odd reinvoca- 
tion of the doctrine of extraterritoriality. An individual sailor 
on shore on duty may or may not be entitled to immunity. In the 
appraisal of his claim, however, he should not be likened to a 
soldier, stationed with his unit in France, who crosses into 
Switzerland. The warship and the members of the crew on shore 
are still in the same state, and when it becomes relevant, that fact 
should be accepted. 32 

The flag state can certainly extend its law to conduct on board 
its warships, even in foreign ports. 33 Direct authority with re- 
spect to its right to exercise enforcement jurisdiction aboard such 
ships is hard to come by, but certainly it is no less extensive than 
on merchant vessels and may well be greater. 34 Enforcement 
jurisdiction may not, however, in any case be exercised on shore 
without the consent of the territorial sovereign. Such jurisdic- 
tion is in fact exercised by consent in many instances but only to 
curb minor excesses, and the authority of the local police is in no 
sense superseded. 35 The disability applies particularly to the 

citing, inter alia, the Tampico Incident, 2 Hackworth, op. cit. supra, note 
10, at 420-21. 

The Reporter's Notes to Sec. 52 of the Restatement, Foreign Relations 
Law, p. 178, take the same approach, though the conclusion is different. 

82 See GidePs comment on the views expressed by Van Praag, 2 Gidel, op. 
cit. supra, note 2, at 296. 

88 1 Hyde, op. cit. supra, note 10, at 800. 

34 Sec. 52, p. 176, of the Restatement, Foreign Relations Law, states that: 
"Except as otherwise expressly indicated by the coastal state, its consenting 
to the visit of a foreign naval vessel * * * implies that it * * * 

(b) consents to the exercise by the foreign state of such of its enforce- 
ment jurisdiction * * * as is necessary for the internal management and 
discipline of the vessel." 

Comment (e), p. 177, states that "The exercise by the state of the vessel, 
of the enforcement jurisdiction that it has * * * is limited to detention, the 
inflicting of minor punishment or the holding of summary courts martial. 
It does not include the inflicting of major punishment such as the death 
penalty." 

United States Navy Regulations 1948, Article 0732, contemplate the 
exercise of limited enforcement jurisdiction on the vessel even with respect 
to strangers to the vessel. Op. cit. supra, note 21. 

88 "For reasons of courtesy and expediency, a usage has arisen permitting 
foreign officers to seize and take on board their ships, without obstruction, 



76 

arrest of deserters, since, at least if they are not apprehended in 
the act of deserting they can be said to have broken, de facto, 
their link to the warship. 36 

members of crews who have become intoxicated and whose offences have not 
been directed against persons or property ashore. * * *" 2 Hyde, op. cit. 
supra, note 10, at 831. 

"In the ports of all countries where foreign men-of-war resort, when 
sailors go ashore, become intoxicated and violate police regulations by 
quarreling with brother sailors — especially where they have insulted or 
injured none of the citizens of the country — their officers are always per- 
mitted to seize them and take them on board without obstruction, unless 
they have been first apprehended by the police. This is a custom, founded on 
courtesy, among all nations." Mr. Buchanan, Secretary of State, to Mr. Leal, 
Brazilian charge, Aug. 30, 1847, S. Ex. Doc. 35, 30 Cong. 1 Sess. 28, 32; 
2 Moore, op. cit. supra, note 1, at 589. 

The United States Navy Regulations 19^8 are strict and explicit. Article 
0625 provides for shore patrols "to maintain order and suppress any un- 
seemly conduct on the part of any member of the liberty party. The senior 
patrol officer shall communicate with the chief of police or other local 
officials and make such arrangements as may be practicable to aid the 
patrol in properly carrying out its work. 

2. A patrol shall not be landed in any foreign port without first obtaining 
the consent of the proper local authorities. Tact must be used in requesting 
the permission, and unless it is willingly and cordially given, the patrol 
shall not be landed. If consent cannot be obtained, the size of the liberty 
parties shall be held to such limits as may be necessary to render dis- 
turbances unlikely. (Emphasis added.) 

3. Officers and men on patrol duty in a foreign country shall be un- 
armed * * *." 

Article 0622 provides: 

"1. The senior officer present shall * * * respect the territorial authority 
of nations in amity with the United States. 

2. Unless permission has been obtained from the local authorities: 

(a) No armed force * * * shall be landed." 

3e "Should any members of the crew desert in a foreign port, the com- 
manding officer must not attempt to arrest them ashore; to do so would be a 
violation of the jurisdiction of the local sovereign." Colombos, op. cit. supra, 
note 8, at 237, citing the case in 1905 in which the commander of the Ger- 
man gunboat Panther sent on shore in Brazil a search party composed of 
twelve petty officers and sailors in uniform, together with three officers in 
plain clothes, who entered several houses and forced some of the local in- 
habitants to help in the search for a missing seaman who had not returned 
from leave on shore. Brazil protested and Germany disavowed the com- 
mander's acts. 

Hyde observes that "For reasons of courtesy and expediency, a usage has 
arisen permitting foreign officers * * * to exercise the customary authority 
for the maintenance of discipline over seamen, remaining ostensibly within 






77 

Writers have differed in the weight they have given precedents 
regarding the crews of warships in situations involving land 
forces. If the approach taken emphasizes the warship as an in- 
strumentality, there is no precise analogy with land forces, though 
where land forces man an installation in an assigned area, the 
parallel is close. 37 Otherwise, though one can speak of an organ- 
ized body of men performing an assigned mission on behalf of the 
sending state, the absence of a physical entity, like a warship, 
which gives form to the concept, makes the argument less con- 
vincing. 

A warship in a foreign port may well present a less serious 
threat both to the security of the littoral state and to its in- 
habitants than a land force stationed on its territory. Foreign 

the foreign naval service, and subject to its de facto control. Such officers 
obviously possess no right, however, to arrest seamen who have deserted and 
escaped from actual control." 2 Hyde, op. cit. supra, note 10, at 831. Hyde 
cites Tucker v. Alexandroff, 183 U.S. 424, in which the court observed: 
"[W]e have no doubt that, under the case above cited, the foreign officer 
may exercise his accustomed authority for the maintenance of discipline, and 
perhaps arrest a deserter dum fervit opus, and to that extent this country 
waives its jurisdiction over the foreign crew or command." For criticism of 
this statement, see 2 Gidel, op. cit. supra, note 2, at 379. 

In The U.S.S. Mohecan, a midshipman who had gone ashore in Brazil 
fired five shots in the streets of the city at one of his boatmen who at- 
tempted to desert. He was arrested and taken before the chief of police, 
who discharged him, allegedly with a reprimand. The Department of State 
stated that the act of the midshipman "in firing a pistol at a deserter in a 
street of Maranham was a breach of the peace, offensive to the dignity of 
Brazil, which the Government of that country may well expect the United 
States to disallow and censure." Mr. Seward, Secretary of State, to Mr. 
Webb, Jan. 23, 1867, M.S. Inst. Brazil, XVI, 162; 2 Moore, op. cit. supra, 
note 1, at 590. 

The case could, however, be distinguished on the ground the midshipman 
displayed excessive zeal in resorting to gunfire. 

The United States Navy Regulations 19^8 contemplate that men may be 
landed to capture deserters with the permission of the local authorities 
(Article 0622, note 34, supra) and the Queen's Regulations and Admiralty 
Instructions of Great Britain do also. Colombos, op. cit. supra, note 8, at 237. 

87 "The immunity of a foreign vessel of war is frequently said to apply 
in respect of members of the crew while on shore and 'on duty/ This un- 
doubtedly has furnished the concept applied by Oppenheim to an army. 
Based on the theory of exterritoriality, the latter is a 'body' and immunity 
beyond its 'lines' is confined to members on duty." Rand, J. in References 
Re Exemption of U.S. Forces from Candian Criminal Law, (1943) 4 D.L.R. 
11, 47. 



78 

land forces are likely to intermingle more with the inhabitants 
and to have more frequent contact with them, over a longer 
period, than the crew of a warship. Maintaining strict discipline 
over the crew of a warship during a short visit is easier than 
maintaining it over land forces during an extended stay. The 
distinction is recognized in the differentiation made between the 
entrance of a warship to a foreign port without specific permis- 
sion and the requirement that a land force obtain express permis- 
sion before it enters foreign territory. 38 

It is difficult on the other hand to discern any reason why troops 
on foreign territory are more entitled to immunity from the juris- 
diction of the territorial state than the crew of visiting warships. 
Such distinctions as can be made point in the other direction. But 
even if their situations are treated as identical, precedents with 
respect to the crews of warships offer little comfort to those who 
believe visiting land forces should enjoy complete immunity from 
the receiving state's jurisdiction. No clear basis appears for dis- 
tinguishing between crews on shore on leave and troops off duty 
in a neighboring town. 



88 "But the role which is applicable to armies, does not appear to be ap- 
plicable to ships of war entering the ports of a friendly power. The injury 
inseparable from the march of an army through an inhabited country, and 
the dangers, often, indeed, generally, attending it, do not ensue from ad- 
mitting a ship of war, without special license, into a foreign port." The 
Schooner Exchange, op. cit. supra, note 9, at 140. 

The Restatement, Foreign Relations Law, recognizes the distinction. Com- 
ment a to Sec. 52, p. 176, states that "In the case of foreign naval vessels, 
notification of an intended visit is customary. It is not necessary that the 
coastal state expressly communicate in return its consent to the visit. The 
mere fact that it does not expressly prohibit the visit is sufficient consent." 
But Sec. 57, p. 183, states that "In time of peace, a force of a state has no 
right to be present in the territory of another state without the express 
consent of the territorial state," and Comment a to that section distinguishes 
the case of a naval vessel entering a port. Comment b, p. 184, notes that 
"The entry of a foreign force into the territory of a state is too important 
a matter to be based upon mere implication of consent by the terri- 
torial state." 



CHAPTER V 
LAND FORCES 

One can speak with some assurance regarding many of the 
problems of jurisdiction over warships and their crews, on the 
basis of the opinion of writers, court decisions and the practice 
of states. As to land forces, however, in the absence of an agree- 
ment as to their status there is a paucity of precedent upon which 
firm conclusions regarding jurisdiction over such forces can be 
based. 

The United States Government in 1943 formally took the posi- 
tion that a rule of international law "recognizes the immunity 
from local jurisdiction in criminal matters of members of the 
armed forces of a foreign sovereign on the territory by permis- 
sion or with the consent of the local sovereign. ,, x The same posi- 
tion was taken by Colonel Archibald King in an article which did 
much to shape American attitudes toward the status of forces 
problem. 2 The Department of Justice, the Department of State 
and the Department of Defense have since taken the reverse posi- 
tion. 3 The latter position has the support of other commentators, 



1 Memorandum submitted by the United States to the Canadian Govern- 
ment in the "Reference Re Exemption of United States Forces from 
Canadian Criminal Law" [1943], 4 D.L.R. 11, at 405 of the Memorandum. 
The Memorandum, and the "Factum of the Attorney General of Canada" 
submitted to the Supreme Court of Canada in the Reference, are both re- 
printed in Hearings on H.J. Res. 309 Before the House Committee on 
Foreign Affairs, 84th Cong., 1st Sess. 404 (July 13, 14, 19-21, 26, 1955). 

2 King, "Jurisdiction over Friendly Foreign Armed Forces," 36 A.J.I.L. 
539 (1942). 

8 See the statement of the Attorney General, submitted to the Senate 
Foreign Relations Committee in the hearing on the NATO Status of Forces 
Agreement and reprinted in 99 Cong. Rec. 8762 (1953). Assistant Attorney 
General Rankin said of this statement: "We examined every authority we 
could find. We examined the original text, the French, the Italian, and all 
of the various law, body of law, of the countries involved in the NATO 
agreements, and I then reviewed it all and we came to the conclusion * * * 
that Colonel King's position could not be maintained, either under the 



80 

notably Dr. G. P. Barton in an outstanding series of articles. 4 It 
is worthwhile to inquire into the basis for the stand taken in 
1943, and for the reversal of that position. 

All discussion of the issue begins with the opinion of Chief 
Justice Marshall in The Schooner Exchange* The opinion, it 
should be noted, is first and foremost an affirmation of the pri- 
macy of territorial jurisdiction. Its major premise is that "the 
jurisdiction of the nation, within its own territory, is necessarily 
exclusive and absolute * * *", and that all exceptions to its "full 
and complete power * * * must be traced up to the consent of the 
nation itself." 6 However, in view of the "perfect equality and 
absolute independence of sovereigns," territorial jurisdiction 
"would not seem to contemplate foreign sovereigns, nor their 
sovereign rights, as its object." Hence sovereigns and ambassa- 
dors are accorded immunity, and 

"A third case in which a sovereign is understood to cede 
a portion of his territorial jurisdiction is where he allows 
the troops of a foreign prince to pass through his dominions. 

decisions or under the practice * * *." Hearings, H.J. Res. 309, supra, note 
1, at 343. 

A memorandum of the State Department stated: "NATO military per- 
sonnel are not immune from the criminal jurisdiction of the United States 
or of the several states. It is the position of the United States that there 
is no such immunity under international law." Hearings on Status of the 
North Atlantic Treaty Organization, Armed Forces and Military Head- 
quarters before the Senate Foreign Relations Committee, 83rd Cong., 1st 
Sess. (1953). 

4 Barton, "Foreign Armed Forces : Immunity from Supervisory Jurisdic- 
tion," 1949 Brit. Yb. Int'l L. 380; Barton, "Foreign Armed Forces: Im- 
munity from Criminal Jurisdiction," 1950 Brit. Yb. Int'l L. 186; Barton, 
"Foreign Armed Forces: Qualified Jurisdictional Immunity," 1954 Brit. 
Yb. Int'l L. 341. 

6 11 U.S. (7 Cranch) 116 (1812). 

6 "It is clear from the language of that decision that the governing, basic, 
principle is not the immunity of the foreign state but the full jurisdiction of 
the territorial state and that any immunity of the foreign state must be 
traced to a waiver — express or implied — of its jurisdiction on the part of the 
territorial state. Any derogation from that jurisdiction is an impairment of 
the sovereignty of the territorial state and must not readily be assumed." 
Lauterpacht, "The Problem of Jurisdictional Immunities of Foreign States," 
1951 Brit. Yb. Int'l L. 220, 229. The Supreme Court, in Wilson v. Girard, 
354 U.S. 524, 529 (1957), cited The Schooner Exchange as authority for the 
statement that "A sovereign nation has exclusive jurisdiction to punish 
offenses against its law committed within its borders, unless it expressly or 
impliedly consents to surrender its jurisdiction." 



81 

"In such case, without any express declaration waiving 
jurisdiction over the army to which this right of passage has 
been granted, the sovereign who should attempt to exercise it, 
would certainly be considered as violating his faith. By ex- 
ercising it, the purpose for which the free passage was 
granted would be defeated and a portion of the military force 
of a foreign independent nation would be diverted from those 
national objects and duties to which it was applicable, and 
would be withdrawn from the control of the sovereign whose 
power and whose safety might greatly depend on retaining 
the exclusive command and disposition of this force. The 
grant of a free passage, therefore, implies a waiver of all 
jurisdiction over the troops, during their passage, and per- 
mits the foreign general to use that discipline and to inflict 
those punishments which the government of his army may 
require." 7 

Marshall cited neither authority nor precedent for his observa- 
tion regarding jurisdiction over foreign armed forces; there was 
little he could have cited. 8 Text writers in the intervening years 
prior to World War II based their comments largely on Marshall's 
opinion ; 9 for other than treaty arrangements in World War I, 10 
there was little else on which they could have been based. 



7 11 U.S. (7 Cranch) 116, 135 (1812). 

8 Hall states that "Either from oversight, or, as perhaps is more probable, 
because the exercise of exclusive control by military and naval officers not 
only over the internal economy of the forces under their command, but 
over them as against external jurisdiction, was formerly too much taken for 
granted to be worth mentioning, the older writers on international law 
rarely give any attention to the matter." Hall, 1 International Law 237-38 
(8th ed. 1934). He cites Casaregis and Lampridi as having taken opposing 
positions on the matter. 

9 Wheaton's comment (1 Inter. Law 234 (6th ed. 1929).) is virtually a 
quotation from Marshall's opinion, as is that of Wildman, 1 Institutes of 
Inter. Law 66 (1849). 

10 United States v. Thierichens, 243 Fed. 419 (D.C., E.D., Pa., 1917) 
held subject to American jurisdiction the commander of the German cruiser 
Prinz Eitel Friedrich, interned in Philadelphia, for smuggling and violation 
of the Mann Act. 

The Military Court of Rome held, in In re Polimeni [1935-1937] Ann. Dig. 
248 (No. 101), that Italy had jurisdiction where a member of the Italian 
armed forces in the Saar Territory, in connection with the plebiscite there, 
assaulted a British corporal. The court said: "International law recognizes 
the so-called fiction of extraterritoriality, which applies to troops passing 



82 

THEORETICAL BASES FOR IMMUNITY 

A. The Interests of the Sending State 

Chief Justice Marshall's reference to the "perfect equality and 
absolute independence of sovereigns" and to a sovereign's "dignity 
and the dignity of his nation" can hardly be read to mean that 
every instrumentality and every representative of a sovereign is, 
when abroad, necessarily completely immune from local jurisdic- 
tion. Marshall himself stated that : 

"The preceding reasoning has maintained the proposition 
that all exemptions from territorial jurisdiction must be 
derived from the consent of the sovereign of the territory; 
that this consent may be implied or expressed; and that, 
when implied, its extent must be regulated by the nature of 
the case and the views under tvhich the parties requiring and 
conceding it, must be supposed to act." 1X 
Moreover, there are simply too many cases of public instru- 
mentalities, e.g., public vessels engaged in commerce, and of rep- 
resentatives of a sovereign, e.g., the lesser personnel of an 
embassy, consuls, representatives to international organizations, 
who admittedly do not enjoy complete immunity, to assert that 
either the equality and independence of states or the respect due 
to a sovereign requires complete immunity for every instru- 
mentality or representative. An argument along these lines could, 
with respect to visiting forces, be made on behalf of a commander 



through or stationed in the territory of another State. This fiction is based 
upon the undisputed principle that armies, the supreme expression of the 
force upon which the sovereignty of a State is founded, carry their laws and 
their judges with them. From this follows another principle, namely that 
the members of the army which passes through or is stationed in foreign 
territory cannot be subject to the criminal jurisdiction of the territory, but 
only to Italian military criminal jurisdiction, regardless of whether the 
crime is one of military or of common law." This is, of course, dictum; 
Italy undoubtedly had at least concurrent jurisdiction over the accused. 

Compare In re Besednjak, Court of Assize, Trieste, Italy, Jan. 16, 1948, 
[1948] Ann. Dig. 106 (No. 33), in which the court rejected a plea that the 
accused were members of the Yugoslav armed forces. The court held that 
Yugoslavia was not allied or associated with Italy in 1945, although it was 
a co-belligerent, so Article 26 of the Italian Military Code in Time of War, 
which provided that if an expeditionary force of an allied state was sta- 
tioned in Italian territory, only authorities of the force could try members 
of the force, was not applicable. 

"U.S. (7Cranch) 116,143 (1812). (Emphasis added.) 



83 

but loses much of its force if advanced on behalf of every soldier, 
sailor, marine, and airman. 12 

The fundamental reason advanced by Marshall for his position 
was that of military exigency; that, in brief, the immunity of 
visiting forces rests on a functional basis. There is nothing in his 
language suggesting the fiction of extraterritoriality and, given 
the present standing of that fiction, one must discount the com- 
ments of those writers who invoke it as the basis for their claim 
that the immunity exists. 13 



12 "It would appear from the reasoning of the Court, [in The Exchange], 
that the basis of immunity in all cases was the same fundamental principle 
that the absolute jurisdiction of one state does not envisage the sovereign 
right of another state as its object. However satisfactory this principle may 
be as a basis for sovereign and diplomatic immunity, there are strong rea- 
sons of theory and practice for seeking a more solid principle on which to 
base the jurisdictional immunity of visiting forces." Barton, 1949 Brit. Yb. 
Int'l L. 280, 411-12. 

But compare Senator Dirksen, 99th Cong. Rec, 8773 (1953) : "Every 
American citizen and every American soldier is a symbol of American 
sovereignty when we send him abroad; and, unless we protect him, we 
demean and degrade the very sovereignty he represents." See also Hall, op. 
cit. supra, note 9, at 219: "The head of the state, its armed forces, and its 
diplomatic agents are regarded as embodying or representing its sovereignty, 
or in other words, its character of an equal and independent being. They 
symbolize something to which deference and respect are due, and they are 
consequently treated with deference and respect themselves." The Canadian 
Attorney General referred to "that fundamental principle which requires 
* * * that the dignity and independence of the foreign government con- 
cerned be preserved entirely in this field of international relations." Ca- 
nadian Factum, Hearings, H.J. Res. 309, supra, note 1, at 431. See also 
Heyking, U Exterritoriality, 156 (1889). 

18 It is not always possible to determine whether a writer who refers to 
extraterritoriality as the basis for the immunity of visiting forces is in 
fact invoking the fiction or merely using the term as a summary of other 
ideas or to describe a result. 

Apparently Oppenheim should be included among the former (1 Lauter- 
pacht-Oppenheim, International Law 853 (8th Ed. 1957) [cited at n. 1, ch. 
IV]), as should Foelix, who wrote: "After having explained how vessels 
navigating on the high seas form the continuation of the nation's territory, 
we must concern ourselves with another fiction of the droit des gens, re- 
lating to the person of the individual accused of a crime or offense. The 
soldier under the flag or on active duty who finds himself in a foreign 
country is considered as being in his country: in consequence, even though 
he is in a friendly or neutral country, the crimes or offenses of which he is 
culpable are punished as though they had been committed in his country." 
2 Droit International Prive 263 (1866) 



84 

Military exigency has been accepted by most writers as the con- 
trolling factor in the situation. It has been the primary basis for 
those who have reached the conclusion that the jurisdiction of the 
sending state over visiting forces passing through or stationed in 
a foreign state is exclusive 14 — which may or may not have been 
Marshall's view. Only a few writers have analyzed the situation 
in depth and explained precisely what the factors of military 
exigency are which require recognizing so extensive an im- 
munity. 

It should be beyond dispute that a military commander must be 
able to maintain discipline over the forces under his command, 
wherever they may be. If he lacked that power, taking an army 
into foreign territory would be in effect to disband it. Stated 

Twiss, who discussed the immunity of foreign forces and warships under 
the heading: "Extra-Territoriality of certain Foreign Persons and Things," 
said in part: "A ship of war has been termed an expansion of the territory 
of the Nation to which it belongs, not only when it is on the wide ocean 
but when it is in a foreign port. In this respect the ship of war resembles 
an army marching by consent through a neutral territory. Neither ships 
of war nor army so licensed fall under the jurisdiction of a Foreign State." 
Law of Nations, 271-272 (1884). 

See also 1 Phillimore, Inter. Law 474 (3d ed. 1879) ; 1 Wharton, Inter. 
Law Digest 43 (2d ed. 1887) ; Holland, Lectures on Intel-national Lav:, 
148-149 (1933); 1 De Martens, Traite de Droit International, 449 (1883). 

Taylor sets forth the fiction but attributes it to necessity and con- 
venience, and in a subsequent comment says: "It may be stated as a 
general rule that a foreign army passing over the territory of a friendly 
state, whether as an ally in a common cause or not, is entirely exempt from 
its civil and criminal jurisdiction, for the reason that any other rule would 
be destructive of discipline. * * * If an exception to this general rule exists 
it is in favor of the local jurisdiction over an offending member of the 
force found entirely outside its line." International Public Law 230 (1901). 

14 Among the writers who assert that the sending state has exclusive 
jurisdiction over its forces, some support their conclusion only by reference 
to the necessity that the commander of the visiting forces be able to main- 
tain discipline, apparently assuming it to be self-evident that the maintenance 
of discipline requires not only the right to exercise jurisdiction but that it 
be exclusive. Others either expressly assert this to be true, or take the 
position that military exigency requires the commander be able to main- 
tain control, as distinguished from discipline, and that the maintenance of 
control demands that the sending state's jurisdiction be exclusive. Some 
refer to neither factor, but simply assert that military exigency requires 
that the sending state have exclusive jurisdiction. 

Hyde states that: "Strong grounds of convenience and necessity prevent 
the exercise of jurisdiction over a foreign organized military force which, 



85 

another way, the sending state must have jurisdiction to prescribe 
rules with respect to the members of its armed forces abroad. For 
the great majority of the members of an armed force such juris- 
diction could be based on nationality; however, this is not the 

with the consent of the territorial sovereign, enters its domain. Members 
of the force who there commit offenses are dealt with by the military or 
other authorities of the State to whose service they belong, unless the 
offenders are voluntarily given up." 1 Hyde, International Law 819 (2d ed. 
rev. 1945). 

Hall states that: "There can be no question that the concession of jurisdic- 
tion over passing troops to the local authorities would be extremely in- 
convenient; and it is believed that the commanders, not only of forces in 
transit through a friendly country with which no convention exists, but also 
of forces stationed there, assert exclusive jurisdiction in principle in re- 
spect of offenses committed by persons under their command, though they 
may be willing as a matter of concession to hand over culprits to the civil 
power when they have confidence in the courts, and when their stay is 
likely to be long enough to allow the case being watched. The existence of a 
double jurisdiction in a foreign country being scarcely compatible with the 
discipline of an army, it is evidence that there would be some difficulty in 
carrying out any other arrangement." Hall, op. cit. supra, note 8, at 250-51. 

Adinolfi states: "Exemption in the case of the army and that in the case 
of warships have a single basis. 

"Both the army and warships are autonomous entities having, within 
each State, their own laws, their own judge, their own executive powers; 
this establishes the force of discipline. The soldier of the land and of the sea 
must obey his hierarchical superior alone. 

"If other powers had the competence to intervene, this bond would be 
severed. Now whatever the unit is, the bond must be kept unbroken." 
Diritto International Penale, Hearings, H.S. Res. 309, supra, note 1, at 411. 

Travers states: "The members of a foreign army, taken in this quality, 
that is to say, considered as an integral part of the public force of a foreign 
State, can not be subjected to the local repressive jurisdiction without 
there being a conflict with the sovereignty of the foreign State, and in- 
terfering with its right of free disposition of its armed forces. 

"Again a government which accepts the presence of foreign troops on its 
territory consents implicitly that the foreign authorities retain over such 
troops the exclusive jurisdiction which is necessary for the perfect mainte- 
nance of discipline." 2 Le Droit Penal International, 346-47 (1921) . 

Calvo, although he says that "When an independent state accords to a 
foreign army permission to pass or to sojourn on its territory, the persons 
who compose that army, or find themselves in its ranks, have a right to the 
perogatives of exterritoriality," says also that: "One understands without 
difficulty the dangers and the inconveniences of all sorts to which troops in 
passage would be exposed if their direction and their police were taken 
from their own officers to be exercised by foreign authorities." 1 Le Droit 
International, 616 (3d ed. 1880). 



86 

most compelling basis. Rather, it is the relationship between an 
individual and the sending state resulting from his status as a 
member of its armed forces and not nationality which compels 
recognition of the sending state's jurisdiction. 15 

Merchant seamen are subject to the flag state's jurisdiction to 
prescribe rules even though they may not be its nationals. Cer- 
tainly there is a much stronger reason for recognizing such juris- 
diction over members of a state's armed forces. The jurisdiction 
of a state to prescribe rules with respect to its nationals abroad is 
recognized; however, there are considerations of policy both for 
and against its exercise, and most states have found the considera- 
tions against it to be more persuasive. But where troops are in- 
volved there is no need to give as a reason for recognizing the 
jurisdiction of the sending state that their conduct abroad may 
disturb the public order of the sending state. There is nothing 
shocking in the idea of subjecting military personnel to the court- 
martial jurisdiction of the state they serve and of making them 
liable to its operation in whatever part of the world they may be. 
On the contrary, the idea is startling that a soldier abroad should 
be free of all restraints except those which the receiving state 
chooses to impose. In other words, those considerations of policy 
which bear upon the wisdom of asserting jurisdiction over na- 
tionals with respect to their conduct abroad are largely irrelevant 
in the case of troops. The relevant considerations are rather those 
which underlie the exercise of jurisdiction on the protective prin- 
ciple, that is, those which concern the security of the state. 16 

Military discipline is a broad term. One can differentiate be- 



i5 «The relationship established when an alien becomes a member of the 
national forces of a state gives the state jurisdiction to prescribe rules 
governing the conduct of the alien, notwithstanding the fact that the service 
in the national forces does not make him a national of the state." Restate- 
ment, Foreign Relations Law, Section 31, Comment c, p. 92. 

18 "A state has jurisdiction to prescribe rules attaching legal consequences 
to * * * (b) conduct of any person who is a member of its national forces." 
Restatement, Foreign Relations Law, Section 31. "Whatever may be the rule 
of international law as regards the ordinary citizen, we have not been 
referred to any rule of international law or principle of the comity of na- 
tions which is inconsistent with a State exercising disciplinary control over 
its own armed forces, when those forces are operating outside its terri- 
torial limits." Spenz, C. J., in Mohammad Mohy-ud-Din v. The King Em- 
peror, Federal Court, India, May 9, 1946, [1946] Ann. Dig. 94 (No. 40). 
The accused was not a British subject. See also Rex v. Page, Courts- 
Martial Appeal Court, England, Nov. 10, 1953, [1953] Int'l L. Rep. 188; 



87 

tween violations of military discipline which relate directly to, and 
those only remotely related to, the performance of military duty. 
One would expect most violations of local criminal law to fall into 
the latter category. It can be said, of course, that the maintenance 
of discipline requires holding troops to a standard of conduct at 
all times whether they are on or off duty. 17 

The relationship between a visiting armed force and the re- 
ceiving state is of paramount importance, for violations of local 
law may affect not only its ability to maintain itself as an effec- 
tive force but its right to remain in the foreign country. The fact 
cannot be ignored that troops in uniform are less likely to be con- 
sidered as individuals and more likely simply to be identified with 
the sending state, than even the most obviously British, French or 
American tourist or businessman. It is understandable, therefore, 
that a sending state should make violations of the local criminal 
law a breach of its military regulations, and its right to do so can 
hardly be challenged. 

Whether the sending state must be able to exercise enforcement 
jurisdiction over its troops in the territory of the receiving state 
is a different issue. It is not quite true that the right to prescribe 
with respect to conduct abroad is valueless unless there is a cor- 
relative right to enforce. Theoretically, it is possible to postpone 
the exercise of the right to enforce until the offender is again on 
the territory of the sending state, and practically this is the pro- 
cedure followed in cases involving an ordinary citizen. States that 

Lahis v. Minister of Defence, Israel, Supreme Court, Feb. 1, 1949, [1949] 
Ann. Dig. 96 (No. 34). 

17 "It is elementary that in order to carry out a military purpose it is 
necessary that the commander be able to maintain discipline. This requires 
that he have complete control over members of his forces at all times and 
in all places. If a foreign force is permitted to intervene and break this 
relationship, the military commander loses control over his forces and not 
only is his power to maintain discipline removed in the instances where 
this actually occurs but it is weakened in all instances by the knowledge 
that such interference is possible. If the soldier is subject to the civil au- 
thorities for acts committed when 'off duty' it is evident that the power of 
the military authorities to prevent such occurrences is practically nullified." 
U.S. Memorandum, Hearings, H.J. Res. 309, supra, note 1, at 417. 

"It is not, of course, a matter of the Defense Department not wishing to 
have exclusive jurisdiction over its own people abroad. Every military 
commander would, of course, prefer for disciplinary reasons to have such 
exclusive jurisdiction." Mr. Brucker, Gen. Counsel, Dept. of Defense (later 
Sec. of the Army) , id., at 238. 



88 

exercise jurisdiction over their nationals for acts done abroad, or 
over aliens with respect to conduct abroad, do not presume to 
exercise enforcement jurisdiction in the territory of the state 
where the offense occurred. While undefined but narrowly limited 
jurisdiction may be exercised on board a merchant vessel in a 
foreign harbor by the flag state, a more extensive jurisdiction 
may be exercised on board a warship in a foreign harbor. Such 
jurisdiction may not, however, be exercised on shore, even with 
respect to the crew of a warship, without the express consent of 
the territorial state, except, perhaps, through a limited power 
to police. 

Does military exigency require the recognition of a more exten- 
sive jurisdiction to enforce in the case of armed forces passing 
through or stationed on the territory of a foreign state than is 
needed in the case of a visiting warship? It seems clear that it 
does. 38 Such forces perform their duties, often for long periods, 
in the territory of the foreign state, rather than primarily on a 
warship which is only temporarily in its harbor. Returning them 
to the sending state for trial for every infraction of discipline 
would be not only prejudicial to the effective administration of 
justice — as well as prohibitively expensive — but disruptive of the 
efficiency of the force. 19 



18 "Except as otherwise expressly indicated by the territorial state, its 
consenting to the presence of a foreign force within its territory implies 
that it consents to the exercise of the sending state's jurisdiction to enforce, 
with respect to the members of the force, rules reasonably necessary for 
the internal administration and discipline of the force." Restatement, Foreign 
Relations Law, Section 59, p. 188. 

19 "[I]f you are to have visiting forces in a country at all they must be 
able to operate their own disciplinary system. That would be a reasonable 
exception to the rule that they are not governed by their own law but by the 
laws of the countries which they visit. If they visit countries as a military 
force under military regulation and military discipline it is in every way 
reasonable that they should be allowed to operate their own military law 
so far as the members of their forces are concerned." Mr. Sidney Silver- 
man, 505 H.C. Deb. (5th ser.) 594 (1952). 

But Italy "felt obliged under Italian law to maintain that United States 
courts-martial could not constitutionally operate on Italian soil. We do not 
believe that the Italian view * * * can be written off as one of their na- 
tional idiosyncrasies." Secretary of Defense Wilson, Hearings on H.R. 
8704 Before the House Committee on Foreign Affairs, 85th Cong., 1st Sess. 
3447 (1957). It should be noted that the Italian position was based on Italian 
constitutional law, not on international law. 



89 

The conclusion that the military authorities of the sending 
state must be able to exercise enforcement jurisdiction in the re- 
ceiving state should not, however, blind one to the fact that even 
in this area military exigency is a relative term. Military exigency 
is also the principal argument for recognizing the right of the 
military authorities of the sending state to exercise jurisdiction 
over civilian employees and dependents accompanying the visiting 
force. As will be pointed out below, the negotiators of the NATO 
Agreement recognized the primary jurisdiction of the sending 
state over civilian employees as a concession to the United States, 
not from conviction, and denied it with respect to dependents. 
Moreover, the Supreme Court has denied the jurisdiction of 
American courts-martial over both civilian employees and de- 

The Czechoslovak Military Court of Appeal in London held in the Allied 
Forces (Czechoslovakia) case, July 15, 1942, [1941-1942] Ann. Dig. 123 
(No. 31), that a Czechoslovak Military Court could sit in Great Britain 
only if authorized to do so by British law, and therefore could not try a 
Czechoslovak officer for an offence committed prior to the effective date of 
the Allied Forces Act, 1940. 

The comments of Mr. Justice Clark in his dissenting opinion in Reid v. 
Covert, 354 U.S. 1 (1957), although they relate to the alternatives to trial 
of dependents by courts-martial, are pertinent. He said, at 88 : 

"Likewise, trial of offenders by an Article III court in this country, per- 
haps workable in some cases, is equally impracticable as a general solution 
to the problem. The hundreds of petty cases involving blackmarket opera- 
tions, narcotics, immorality, and the like, could hardly be brought here for 
prosecution even if the Congress and the foreign nation involved authorized 
such a procedure. Aside from the tremendous waste of the time of military 
personnel and the resultant disruptions as well as the large expenditure of 
money necessary to bring witnesses and evidence to the United States, the 
deterrent effect of the prosecution would be nil because of the delay and 
distance at which it would be held. Furthermore, compulsory process is an 
essential to any system of justice. The attendance of foreign nationals as 
witnesses at a judicial proceeding in this country could rest only on a 
voluntary basis and depositions could not be required. As a matter of in- 
ternational law such attendance could never be compelled and the court in 
such a proceeding would be powerless to control this vital element in its 
procedure. In short, this solution could only result in the practical abdica- 
tion of American judicial authority over most of the offenses committed by 
American civilians in foreign countries." 

See also Mr. Justice Clark's comment along the same lines in his opinion 
for the majority in the companion case, reversed on rehearing, of Kinsella 
v. Krueger, 351 U.S. 470 (1956), note 12, at 479, and that of Mr. Justice 
Harlan in his concurring opinion in Reid v. Covert, 354 U.S. 1 (1957), note 
12, at 76. 



90 

pendents. 20 The issue in these cases is not, of course, quite the 
same, but the principal argument was that military exigency — the 
need to maintain discipline — required recognition of the juris- 
diction. 21 

The other side of this coin concerns the right of the receiving 



20 Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 
(1960) ; Grisham v. Hagen, 361 U.S. 278 (1960) ; McElroy v. Guagliardo 
and Wilson v. Bohlender, 361 U.S. 281 (1960). 

81 Mr. Justice Harlan, in his concurring opinion in Reid v. Covert, 354 U.S. 
1,71 (1957), said: 

"The Government, it seems to me, has made a strong showing that the 
court-martial of civilian dependents abroad has a close connection to the 
proper and effective functioning of our overseas military contingents. * * * 
Suffice it to say that to all intents and purposes these civilian dependents 
are part of the military community overseas, are so regarded by the host 
country, and must be subjected to the same discipline if the military com- 
mander is to have the power to prevent activities which would jeopardize 
the security and effectiveness of his command." 

In a footnote, the Justice added : "This necessity is particularly acute with 
regard to peculiarly 'military' and 'local' offenses which must be dealt with 
swiftly and effectively. Thus security regulations at these military installa- 
tions must be enforced against civilian dependents as well as servicemen; 
the same is true of base traffic violations, black marketeering, misuse of 
military customs and post-exchange privileges." 

Mr. Justice Clark, in his dissenting opinion, said, at 83: "It cannot be 
denied that disciplinary problems have been multiplied and complicated by 
this influx of civilians onto military bases, and Congress has provided that 
military personnel and civilians alike shall be governed by the same law 
administered by the same courts." 

He then quoted the following from Judge Latimer's opinion in United 
States v. Burney, 7 U.S.C.M.A. 776; 21 C.M.R. 98 (1956) : 

"[It] is readily ascertainable that black market transactions, trafficking 
in habit-forming drugs, unlawful currency circulation, promotion of illicit 
sex relations, and a myriad of other crimes which may be perpetrated by 
persons closely connected with one of the services, could have a direct and 
forceful impact on the efficiency and discipline of the command. One need 
only view the volume of business transacted by military courts involving, 
for instance, the sale and use of narcotics in the Far East, to be shocked 
into a realization of the truth of the previous statements. If the Services 
have no power within their own systems to punish that type of offender, 
then indeed overseas crimes between civilians and military personnel will 
flourish and that amongst civilians will thrive unabated and untouched. A 
few civilians plying an unlawful trade in military communities can, 
without fail, impair the discipline and combat readiness of a unit * * *." 

Mr. Justice Clark added: "In addition, it is reasonable to provide that the 
military commander who bears full responsibility for the care and safety of 
those civilians attached to his command should also have authority to 






91 

state to exercise jurisdiction with respect to action taken against 
a member of the armed forces of the sending state by its military 
authorities. If an individual arrested, tried, and punished by such 
authorities has a cause of action in the court of the receiving 
state for assault, false arrest, or false imprisonment, or if a writ 
of habeas corpus may be issued, then the sending state has no 
effective power to exercise enforcement jurisdiction in the re- 
ceiving state. Alternatively, if the accused's remedy in a court 
of the receiving state is limited to obtaining a review in the 
nature of a proceeding in error, or is even more limited, to a pro- 
ceeding testing whether the military authorities of the sending 
state acted within their jurisdiction, then the military authorities 
have a right, limited but significant, to exercise enforcement juris- 
diction. If the accused has no recourse to the courts of the re- 
ceiving state, the enforcement jurisdiction of the sending state is 
complete. Extensive though perhaps not necessarily complete im- 
munity from the supervisory jurisdiction of the receiving state is 
seemingly a necessary corollary of the right of the sending state 
to exercise enforcement jurisdiction in the receiving state. 22 

It has been asserted that Chief Justice Marshall, in referring 
to the immunity of foreign armed forces from local jurisdiction, 
had in mind only this immunity from the supervisory jurisdiction 
of the local courts, not that of the troops from local criminal 
jurisdiction. His language can be so read and the view that it 
should be has elicited impressive support, 23 but the argument for 
the traditional reading seems persuasive. 24 

regulate their conduct. Moreover, all members of an overseas contingent 
should receive equal treatment before the law. In their actual day-to-day 
living they are a part of the same unique communities, and the same legal 
considerations should apply to all. There is no reason for according to one 
class a different treatment than is accorded to another. The effect of such a 
double standard on discipline, efficiency, and morale can easily be seen." 
(at 85). 

22 "Under the rule stated in this Section, the territorial state may not 
treat the actions of the military authorities of the sending state in their 
exercise of its jurisdiction as though they were illegal acts under the law 
of the territorial state." Restatement, Foreign Relations Law, Comment a 
to Section 59, p. 189. 

28 Barton, 1949 Brit. Yb. Int'l L., op. cit. supra, note 4, at 384. See the 
statement of the Attorney General, 99 Cong. Rec. 8767 (1953) and the 
statement of Senator Ferguson entitled "Immunity of Friendly Foreign 
Forces under International Law," 99 Cong. Rec. 8759 (1953). 

"Wright v. Cantrell, [1943] 44 S.R.N.S.W. 45; [1943-1945] Ann. Dig. 



92 

The right to exercise enforcement jurisdiction referred to is, 
however, a jurisdiction over the armed forces of the sending state, 
not over the citizens or residents of the receiving state who have 
no connection with those forces. The effective administration of 
justice requires the power to compel the attendance of witnesses 
and the production of documents and to punish for contempt and 
perjury. It will be recalled that the lack of such power over 
others than its own nationals was a major weakness when the 
United States exercised extraterritorial jurisdiction in China. It 
seems most unlikely, nevertheless, that military exigency would 
ever be viewed as sufficiently compelling to justify the exercise 
of jurisdiction by the sending state over other than its armed 
forces, unless the authority of the territorial state was no longer 
operative in the area. 25 

The effective exercise of enforcement jurisdiction likewise re- 
quires, if not police power in the visiting forces, 26 at least the 
sympathetic cooperation of the local police. For the local police to 
arrest for a violation of the sending state's military regulations 
is, however, for them to undertake to enforce foreign penal law, 
and to turn the offender over to the authorities of the sending 

(No. 37), cited by Dr. Barton, reflects the view that the approach to the im- 
munity of armed forces should be in functional terms, but does not, it is 
submitted, indicate the belief that only immunity from supervisory jurisdic- 
tion is, in those terms, necessary. 

26 In Ministere Public v. Saelens, Court Martial of Ypres, Belgium, Oct. 
25, 1945, [1946] Ann. Dig. 85 (No. 35), the accused was charged with 
offences against the safety of the Allied armies in Belgium. He contended 
that a domiciliary search had been carried out by British MPs without a 
regular warrant. In dismissing the charges the court said: "The military 
police of an allied occupying Power is not competent to resort to domiciliary 
search for the purpose of investigating and repressing offences subject to 
Belgian law. No Belgian law grants British Military Police such rights. 
On the contrary, the Convention concluded on May 16, 1944 in London be- 
tween the Belgian Government and allied Governments provided that Bel- 
gains who have committed crimes or delicts against allied armies shall be 
summoned before Belgian Courts Martial and that the crimes and delicts 
shall be investigated and punished in accordance with Belgian law." 

26 The British Government, in the World War I negotiations with the 
United States, indicated its belief that police power could not be exercised 
by the American military authorities outside the limits of their camps with- 
out the express consent of the British government. See p. 120, infra. See 
also Barton, 1954 Brit. Yb. Int'l L. 341. The United States Congress ap- 
parently assumed the contrary, in enacting the Service Courts of Friendly 
Foreign Forces Act. See p. 132, infra. 



93 

state is equivalent to extradition. 27 It is evident that the existence 
of such power in the local police might be successfully challenged 
and that the officer who exercised it might incur civil liability. 28 

The issues thus raised are quite distinct from the issue whether 
the jurisdiction of the sending state both to prescribe and to en- 
force as to its forces in the receiving state is exclusive or the re- 
ceiving state has concurrent jurisdiction. The argument that the 
sending state must have jurisdiction over its forces is compelling. 
That military exigency demands that such jurisdiction be exclu- 
sive is much more debatable and is indeed the crucial question. 

Exercise of jurisdiction by the receiving state does not, in a 
direct sense, preclude the sending state from maintaining dis- 
cipline. Even if an act is a much more serious offense under the 
military law of the sending state than under the criminal law of 
the receiving state, as may well be true, it does not necessarily 
follow that the sending state should have exclusive jurisdiction, 
though common sense would suggest that the receiving state 
should recognize a prior claim in the sending state. 29 More is, 
however, involved. Maintaining discipline, like maintaining re- 
spect for any system of criminal law, requires prompt prosecu- 
tion. Concurrent jurisdiction, or rules for determining priority 
of jurisdiction which are less than clear cut, can occasion delay — 
which can be disruptive of discipline. A rule allocating exclusive 
or primary jurisdiction to the sending state could have the large 
advantage of eliminating such delays. 

It has been said that a commander must be able not only to 



27 It was, however, held in Katzu Officer Commanding the Polish Military 
Prison, Jerusalem, Supreme Court, Palestine, July 7, 1944, [1943-1945] Ann. 
Dig. 165 (No. 45), that the fact a member of a foreign force was ir- 
regularly handed over to the military police of that force after apprehen- 
sion by the local civil police did not deprive the foreign court martial of 
jurisdiction. 

28 "To justify his detention on British soil, authority must be found in the 
law of this country. * * *" Viscount Caldecote, C.J., In Re Amand [1941], 
2 K.B. 239, a habeas corpus proceeding brought by a Dutch citizen arrested 
pursuant to the Allied Forces Act for desertion from the Netherlands forces. 

29 "[T]here may well be cases in which an offense may be a trifling matter 
from the point of view of our domestic law but a serious breach of dis- 
cipline from the point of view of the military authorities. In such cases 
common sense would require the offender to be handed over to the military 
authorities to be dealt with, just as the British soldier is handed over in 
similar circumstances." Sir David Maxwell Fyfe, Home Secretary, 505 H.C. 
Deb. (5th ser.) 566-67 (1952). 



94 

maintain discipline but to maintain control over his command. It 
is true that the exercise of jurisdiction by the receiving state re- 
moves the accused from the control of the sending state, and his 
unavailability may reduce the effectiveness of the force. 30 The 
"for want of a nail" approach can, however, be pushed too far. 
The alternative to the exercise of jurisdiction by the receiving 
state is not complete immunity, but trial by a court-martial of the 
visiting forces, and the availability for duty of the offender, at 
least in an emergency, can be as much affected by his court- 
martial and imprisonment in a military prison as by his deten- 
tion, trial and imprisonment by the receiving state. The argument 
that if one soldier may be imprisoned a thousand may be 31 is 



80 The Canadian Factum refers to the "* * * fundamental principle which 
requires that the commander of the visiting troops be not interfered with in 
the control and disposition of his forces * * *," and continues: "It is diffi- 
cult to see how a visiting allied force could fully and efficiently function as 
an organization of the State to which it belongs if its members who remain 
component parts thereof and subject to be called to action at any time as 
long as they retain their connection therewith, were liable to be arrested, 
prosecuted and detained by the local authorities for offenses committed by 
them while on leave." Hearings, H.J. Res. 309, supra, note 1, at 431. 

It was said in the British Parliament that: "Clearly, if a body of foreign 
troops is serving in this country it is far better that they should serve under 
their own code of discipline than be amenable to the courts of this country. 
* * * Under our own code, for a British soldier to fight a citizen of a 
foreign country in which he happens to serve is a much more serious offence 
under the military code than under the civil code. Obviously an American 
commander, just like a British commander who has British troops serving 
in America, is very concerned about the reputation of the troops under his 
command and the maintenance of discipline. It would not be much use un- 
less he had effective control, and * * * it is of paramount importance that 
American commanders should have control of their forces here. * * * The 
point which we are really discussing is who is to control the forces * * * 
are they to be effectively controlled by the American commander or by the 
chairman of the bench of magistrates in the area in which they are serving. 
I prefer that effective control shall rest in the hands of the American com- 
mander." Mr. George Wigg, 505 H.C. Deb. (5th ser.) 1073-76 (1952). 

81 "But more important even than the weakening of discipline by the 
exercise of divided authority is the fact that it gives to the local authorities 
the power to remove a nation's troops from its control, for if one soldier 
can be arrested and imprisoned by the local authorities so can a thousand. 
If enlisted men can be arrested and imprisoned, so can their officers, in- 
cluding even the commander of the forces himself. Thus also the purpose for 
which the forces were admitted can be defeated and the local sovereign be 
placed in the contradictory position of permitting the foreign forces to 



95 

not entirely persuasive. A thousand may be imprisoned only if 
there is a reasonable basis for saying they have committed a 
thousand crimes. The alternative is to assume that a receiving 
state would deliberately undertake to arrest innocent men, pre- 
sumably with the deliberate intent of crippling the foreign force. 
Power may be abused, but abuse of power on such a scale seems 
unlikely — even though there may be degrees of friendship be- 
tween friendly allies. 

The argument that a commander must have exclusive control 
over his forces at all times has not proved compelling with re- 
spect to the crews of warships on shore leave. Its weight with 
respect to land forces has been challenged on pragmatic grounds 
by an American judge of the Egyptian Mixed Courts 32 and ques- 
tioned by the Departments of State and Defense. 33 

The advent of nuclear weapons, especially those married to 
missiles, suggests, however, a need to reappraise the issues of dis- 
cipline and control. Now that the reaction time available to re- 
spond to a nuclear onslaught is measured in minutes, the need 
for strict discipline and complete control within a command can 
be imperative. Moreover, to distinguish between those troops 



come on his territory to accomplish a purpose and then preventing them 
from accomplishing it." U.S. Memorandum, Hearings, H.J. Res. 309, supra, 
note 1, at 417. 

82 "Certainly the fears expressed by Colonel King find no support in the 
acid test of practical experience, as exhibited in the score or more of cases 
in which the principle was applied in Egypt. In no quarter was the sugges- 
tion seriously made that the trial before the courts of the land of offenders 
against the public peace had in any manner obstructed military discipline." 
Brinton, "The Egyptian Mixed Courts and Foreign Armed Forces," 40 
A.J.I.L. 737, 739 (1946). 

83 General Walter Bedell Smith, Under Secretary of State, in a letter to 
Senator Wiley, Chairman of the Senate Foreign Relations Committee, said: 
"It is the opinion of the Departments of State and Defense, that it is 
neither necessary nor desirable for the United States to seek or have exclu- 
sive jurisdiction by treaty over its forces, civilian components, or their 
dependents in the NATO countries. * * * 

After quoting the opinions of Generals Bradley and Ridgway, he con- 
tinued : 

"It would therefore appear clearly to be established that exclusive jurisdic- 
tion of our forces, civilian components, or dependents abroad, is not neces- 
sary from the military point of view. I wish to add my personal endorse- 
ment, based upon my own military experience, to that conclusion." 99 Cong. 
Rec, pp. 8776-77 (1953). 



96 

armed with nuclear weapons and others could well involve a too 
great security risk. 

B. The Interests of Individuals 

Debate in the United States regarding immunity for our troops 
abroad has centered not on military exigency but on the interests 
of the accused. It is the thought of a seaman or soldier unjustly 
accused and unfairly tried, confined in a foreign prison, rather 
than of a warship or army rendered less effective, which has 
troubled many. The legalistic answer is that immunities are ac- 
corded to protect the interests of the state, not the individual. 
With that answer the ordinary citizen, 34 accused of a crime 
abroad, must be content. The same is true for the majority of 
government employees stationed abroad. This does not mean, of 
course, that the individual or his government must acquiesce in 
any treatment he may receive at the hands of a foreign govern- 
ment. He is protected by the ordinary rules of international law 
concerning the denial of justice, and a member of the armed 
forces is entitled to the same protection. 

The case of a member of the armed forces can be distinguished 
from that of the ordinary citizen only if it can be related to mili- 
tary exigency. It has been said that immunity for our forces has 
a bearing upon morale, but the evidence suggests that at least in 
practice the argument lacks factual support. 35 Again, it has 



84 See 2 Hackworth Digest of Intel-national Law 84 (1940-41). That a 
person is an American citizen does not "give him an immunity to commit 
crimes in other countries, nor entitle him to demand, of right, a trial in any 
mode other than that allowed to its own people by the country whose law 
he has violated * * *." Neely v. Henkel (No. 1), 180 U.S. 109, 123 (1901). 

85 General Hickman, Ass't. Judge Advocate General, Department of the 
Army (later Judge Advocate General) testified in the Hearings before a 
Subcommittee of the Committee on Armed Service, United States Senate, 
84th Congress, 1st Sess., 40, March 29, 31 and June 21, 1955, that "The 
comments which have been received from field commanders and from Judge 
Advocates in the field, our legal officers, indicate that in all but a very few 
countries the operation whereby military jurisdiction is shared with foreign 
courts has not had an unhealthy effect upon the accomplishment of our mili- 
tary missions or upon the morale and discipline of our forces. 

"The significant exceptions are French Morocco and Turkey where ex- 
tended delays in investigations and trials have, to a certain extent, impaired 
morale and discipline." 

For General Hickman's comments on individual countries, see id., at 16. 
Among the more interesting are : 

"The service commanders concerned have reported that arrangements and 



97 

legal procedures relative to the exercise of jurisdiction in Canada are entirely 
satisfactory and have resulted in no different effect on the station mission, 
morale, and discipline than if this station were located in the United States." 
Id., at 34. "The Air Force commanders state that the jurisdictional arrange- 
ments in French Morocco have had a negligible impact on the accomplish- 
ment of their mission, but that the slowness of the local judicial process of 
the local courts has adversely affected morale and discipline, while the possi- 
bility of trial by local courts has had a positive effect on discipline." Id., at 
36. "The Navy commander states that an amicable relationship exists be- 
tween the military and Philippine authorities under existing arrangements, 
and that the exercise of jurisdiction by Philippine authorities over our per- 
sonnel has favorably affected the morale and discipline of our forces." Id., 
at 37. 

General Hickman testified in the hearing before the same subcommittee on 
February 9, 1956 that: "The comments which have been received from com- 
manders in the field indicate that although some are adverse to the jurisdic- 
tional arrangements, nevertheless in all but one of the countries in which by 
agreement military jurisdiction is shared with foreign courts they consider 
that these arrangements have not had a detrimental effect upon the accom- 
plishment of our military missions or upon the morale and discipline of the 
members of the forces. The exception is French Morocco where extended 
delays in investigations and trial have, to a certain extent, impaired morale 
and discipline." p. 32. "The Air Force commander (in French Morocco) 
states that the jurisdictional arrangements have had no direct effect upon 
the accomplishment of the mission of the command. He reports, however, 
that morale of personnel involved in minor offenses is affected by long de- 
lays between the date of the offense and the date of final adjudication, 
and that the amount of time spent by other personnel in assisting the ac- 
cused and in monitoring proceedings is disproportionate to the offense in 
the majority of cases." p. 29. "The Army and Air Force commanders (in the 
Philippines) report that, except for minor inconvenience in some cases, 
jurisdictional arrangements have had no adverse effect upon the accomplish- 
ment of the mission or upon the morale and efficiency of the forces. The 
Navy commander reports that 'the impact upon morale had been quite 
favorable and at the same time the posed threat of arrest and conviction by 
Philippine courts with possible imprisonment in a Philippine jail contribute 
to good discipline/ " p. 29. "The Army and Navy commanders (in Canada) 
have reported that jurisdictional arrangements have had no adverse effects 
upon the morale and efficiency of their forces. The Air Force commander 
has stated that 'local jurisdictional arrangements have been of such a 
highly satisfactory nature as to assist this command in the performance of 
its mission/ " p. 25. 

In the April 9, 1957 Hearing before the Subcommittee General Hickman 
again testified regarding the situation in various countries. "The Army com- 
mander in France has reported that the jurisdictional arrangements have 
had no significant effect upon the accomplishment of his mission. He stated 
that * * * the personnel of his command are tending more and more to 
accept as normal the right of French authorities to exercise jurisdiction in 



98 

been urged that, unlike ordinary citizens, members of the armed 
forces go abroad involuntarily. They nevertheless go at the order 
of the sending, not the receiving state. 36 This suggests that the 
sending state shall do all it can to ensure that members of its 
armed forces receive every protection which the law of the re- 
ceiving state affords an accused. This duty the United States has 
recognized in full measure. It may suggest also that the sending 
state should do all it can to secure immunity from the receiving 
state's jurisdiction for its forces. It is much less clear that the 
receiving state has any obligation to accord immunity to the mem- 
bers of a visiting force because they are, in a personal sense, 
within its territory involuntarily. The belief that there is no 
convincing basis for distinguishing the case of a member of the 
armed forces from that of an ordinary citizen has led some to 
conclude they should be equally subject to the jurisdiction of the 
receiving state. 37 

matters of a nonmilitary nature. However, he stated that the French pro- 
cedure permitting the combined trial of criminal and civil actions is still a 

source of irritation and dissatisfaction. 

******* 

"He (the Air Force Commander) stated also that time delays between the 
occurrence of an incident within the primary jurisdiction of France and the 
decision by French authorities whether to retain their jurisdiction have 
adversely affected his disciplinary control and the prompt administration of 
military justice. That would be because he would have to hold up dis- 
ciplinary action in a case while waiting to learn whether he could try it by 
court-martial." p. 17. 

86 [A]s to the implied preferential treatment which might or should be 
given to a soldier because he is drafted and sent abroad, of course, I am 
extremely sympathetic to that thought: I have been at this for a long time. 
But technically, the fact remains that a soldier who is sent abroad, regard- 
less of whether he is drafted or whether he volunteers, goes abroad at the 
will of the United States and at the will of the United States Congress, so 
technically, I believe, as far as civil offenses are concerned, and subject al- 
ways to the safeguards of denial of justice which the United States always 
holds, and subject always to the fact that the United States will not itself 
in similar cases and under identical conditions relinquish its sovereignty, 
there should not be preferential treatment." General Smith, Under Secre- 
tary of State, Hearings, Before the Senate Foreign Relations Committee on 
Status of Forces, 83d Cong., 1st Sess. 56 (1953). 

87 "I can see no reason why the United States should feel that such a con- 
dition should attach to these persons any more than to other American 
citizens present overseas on their own or official business. The standard of 
conduct and of jurisdiction should be identical." General Smith, Under 
Secretary of State, letter to Senator Wiley, 99 Cong. Rec, 8777 (1953). 



99 

Those who feel that the case of a member of the armed forces 
is different from that of the ordinary citizen have made much of 
the point that American troops, if subject to the jurisdiction of 
the local courts, would be tried under a system of law with which 
they are not familiar 38 and, particularly, would not enjoy the 
rights guaranteed by the United States Constitution. 39 The force 
of the latter argument is somewhat diminished because not all 
constitutional guarantees apply to actions by a state or to 'courts 
martial. Apart from this, the force of the argument varies from 
country to country, depending on the rights which an accused en- 
joys in each. There is need, in this connection, to distinguish be- 
tween those rights which the organic law guarantees and those 
which in practice are accorded. There can be an abuse of rights 
of the accused in any system. One should not compare systems 
of criminal law in terms of the theoretical protection accorded by 
one and the abuses which may occur, in practice, in another, un- 
less, of course, those abuses are chronic. Again, the United States 
Senate included in the instrument of ratification of the NATO 



"It seems to me that we should be concerned with whether or not an 
American citizen, whether a member of our Armed Forces, a dependent, or 
part of our civilian force, is accorded the same rights and privileges, and is 
tried under the same procedure that any citizen of that receiving state 
charged with a similar criminal offense would be entitled to have." Senator 
George, Hearings, Sen. For. Rel. Com., NATO Treaties, supra, note 3, at 49. 

See also Congressman Fulton's statement, Hearings, H.J. Res. 309, supra, 
note 1, at 25: "The general question comes up how much protection can or 
should be given by the United States Government to United States nationals, 
military or civilian, abroad. Should the United States ask for the protec- 
tion of United States courts and justice for every civilian who goes abroad 
as a tourist, so long as he has a visa and a passport? How far should or 
can the United States go in this general field? Or should the United States 
make a special case of United States servicemen who are stationed abroad 
either voluntarily or involuntarily, and extend the protection beyond the 
line of their duty, when servicemen are traveling as tourists or are out of 
uniform in civilian life in the foreign country." 

88 The argument can in general be made only with respect to procedure, 
since an offense against local law is normally an offense under the Uniform 
Code of Military Justice. This is recognized in Senator Bricker's statement: 
"The fact is that American servicemen are reasonably familiar with the 
Uniform Code of Military Justice and their rights thereunder. They do not 
know and we do not know anything about the criminal procedure of the 
other NATO countries and Japan." 99 Cong. Rec, 8747 (1953). 

"See the remarks of Senator McCarran, 99 Cong. Rec, 8732-8734; 
Senator Dirksen, id., at 8773. 



100 

Agreement a statement establishing a procedure for safeguarding 
the rights of the members of our forces. 40 The Senate directive 
has been vigorously implemented by the several services. 

Trial by a court-martial of the sending state also means that 
the accused is tried by his fellow nationals. There is much 
evidence that this factor has been paramount in the minds of 
many who have felt most strongly that the United States should 
have exclusive jurisdiction over its forces abroad. 41 The same 
point has been in part responsible for the refusal of some states 
to extradite their own nationals. The counter argument is that 
normally a man's appropriate judges, particularly in the common 
law system, are deemed to be those resident where the crime was 
committed. 

A related point is that a court-martial conducted by the send- 
ing state has the great advantage, from the standpoint of the ac- 
cused, that the prosecutor and judges speak his language. 42 From 
the standpoint of the victim, the witnesses who are residents of 



40 See page 261, infra. 

4i «* * * |-j-j n my . h um t>i e opinion they still should be tried by Americans 
under the American system." Congressman Bow, Hearings, H.J. Res. 309, 
supra, note 1, at 19. 

"I don't know of anyone who would want to be tried, whether guilty or 
innocent, in a foreign court." Congressman Le Compte, id., at 21. 

"I think the difference as to this question of trial by jury, even in Great 
Britain where our common law came from, is that he does not have a trial 
by jury of his peers, because his peers could only have been of his own 
country." Congressman Richards, id., at 104. 

"* * * a man presumably might not get a trial by jury, if he is tried by 
court-martial, but * * * he would get a trial by Americans." Congressman 
Adair, id., at 104. 

"Anglo-American criminal law is rooted in the principle that the accused 
may be tried only by his fellow citizens and only by those citizens who 
reside near the scene of the alleged crime. Here we are concerned with the 
rights of Americans in a military rather than a civilian community. In 
essence, however, the same principle is involved. Shall Americans subject to 
the jurisdiction of the United States be tried by other Americans who live 
in the vicinity of the scene of the alleged crime?" Senator Bricker, 99 
Cong. Rec, 8741 (1953). 

42 Congressman Rodino referred to "[T]he handicap of his being tried in a 
foreign country. First, he is not fluent in the language, even though he may 
have some knowledge of that in which he is being tried. He is in a land 
of nationals foreign to him in every sense of the word. Their customs, 
their laws, their attitudes are strange to him." Hearings, H.J. Res. 309, 
supra, note 1, at 66. 



101 

the receiving state and local officials who may be involved, it has 
the great disadvantage that the judges and prosecutor may not 
speak their language. 43 Serious offenses against the local law 
normally involve some local residents; even minor offenses, e.g., 
traffic violations, involve at least the arresting officer. The issue 
is more than one of convenience, since it goes to the fairness of 
the trial, from the standpoint of all concerned. 

A related issue is that of possible prejudice, reflected in the 
manner and diligence with which the investigation and prosecu- 
tion are pursued, in the way in which the trial is conducted, in 
the verdict, and in the severity of the sentence. Fear has been 
expressed that prejudice against foreigners, and particularly 
against American troops, would be shown in trials of members of 
our forces in foreign courts. 44 There is, of course, a possibility 
of prejudice in favor of the accused if the trial is before a court- 
martial of the sending state. 

C. The Interests of the Receiving State 

The status of forces problem requires more than gauging the 
significance of such concepts as the equality and independence of 
states and weighing the demands of military exigency and of 
protection of the individual. These must be balanced against the 
legitimate interests of the receiving state. 



" Judge Brinton, referring to the cases which arose in Egypt in World 
War II, said: "Indeed practical considerations suggest strong reasons in 
favor of the exercise of the civil authority. The offenses in question were, 
by their very definition, committed outside the military precincts and in- 
variably involved, or were directed against, members of the civilian popula- 
tion. They also involved the intervention of the local police and the setting 
in motion of those measures of immediate record of the facts recorded in 
an official proces-verbal which forms, in general, such an admirable feature 
of European criminal systems. For the most part they have been brawls 
and shootings in the public street and in cafes, or robberies or other similar 
offenses affecting public peace and order, where the language used by the 
available witnesses has often been one with which the military authorities 
are unfamiliar. The difficulties presented by the trial of such cases by a 
court-martial remote from the scene of the offense are obvious." Brinton, 
"The Egyptian Mixed Courts and Foreign Armed Forces," 40 A.J.I.L. 737, 
739 (1946). 

** "Their attitudes are bound to be unsympathetic to a transgressor in 
their midst. Moreover, the very presence of our troops abroad causes irrita- 
tions." Cong. Rodino, Hearings, H.J. Res. 309, supra, note 1, at 66; see also 
comments of Senator Long, 99 Cong. Rec, 8778 (1953) ; and Senator 
Hendrickson, id., at 8738. 



102 

It will be recalled that primacy is normally accorded the terri- 
torial principle. Anglo-American law in particular is rooted in 
this concept. The receiving state therefore can stand upon the 
strongest of the recognized bases of jurisdiction in claiming 
jurisdiction over visiting forces. A major factor in this approach 
has been the idea that the maintenance of order within its borders 
is one of the highest functions of the modern state, and, by 
necessity, peculiarly its function. Any state is understandably 
reluctant to entrust the protection of the lives and property of its 
citizens to a foreign state. States have generally been prepared 
to show such trust unqualifiedly only in cases involving heads of 
states and diplomats accredited to them. Other representatives 
may enjoy immunity for criminal acts done in the performance 
of official duty, but that such immunity exists is at best debatable. 
All other immunities are hedged about with qualifications which, 
in general, reflect the recognition of the interests of the territorial 
state, particularly its basic right to protect the persons and 
property of its citizens. 

Attitudes with respect to the status of land forces have been 
largely influenced by this fundamental consideration. 45 The mis- 
givings of receiving states asked to concede exclusive jurisdic- 
tion over visiting forces have been met by recognition of the 
moral if not the legal obligation of the sending state to punish 
for violations of local law. 46 There is no claim that visiting forces 



46 «* * * [ 13 -fc is the protection of our own nationals which is being con- 
fided to their criminal jurisdiction." Mr. Garro Jones, in the debate on The 
United States of America (Visiting Forces) Act, 382 H.C. Deb. (5th ser.) 
886, (1942). 

"We are reducing ourselves to the position in which certain countries 
were put by us under the Capitulation Treaties." Mr. Clement Davies, id., 
at 894. 

"I am not willing as a United States citizen to have foreigners in this 
country not subject to our laws, when they are not on official or diplomatic 
duties. I want them tried by United States courts for the protection of 
United States citizens." Congressman Fulton, Hearings, H.J. Res. 309, supra, 
note 1, at 89. 

* 8 General Walter Bedell Smith, Under Secretary of State, referred to the 
need "to ensure that the people of the countries who receive troops are pro- 
tected with respect to their lives, their property and their security from 
the illegal activities of foreign troops or civilians. 

"It is a problem which always confronts us when we are operating in 
allied countries. During the war it is met by stern measures. In time of 
peace we have to apply all the legal safeguards which we ourselves, as a 



103 

should be free to violate the local law at will. 47 The situation 
sometimes met in extradition cases, where a state refuses to 
extradite its own national even though it is unable or unwilling to 
try him under its own law, is not likely to arise. 

The courts-martial of a sending state cannot, of course, directly 
enforce the laws of the receiving state. When the United States 
exercised extraterritorial jurisdiction in China, this raised a 
major problem, for it was not clear what laws of the United 
States could be considered as applicable to conduct in China. Nor 
was there any general rule that any violation of Chinese law was 
a violation of American law. 

Today, the situation with respect to American troops abroad is 
quite different. Not only are many acts made criminal if corn- 
nation, feel necessary for its citizens." Hearings Sen. For. Rel. Com. NATO 
Treaties, supra, note 3, at 3-4. 

Colonel King commented: "It goes without saying that it is the right and 
duty of the government of the host country to make sure that the persons 
and property of its nationals are effectively protected against crimes by 
members of the visiting forces, and that the latter's immunity from prosecu- 
tion in the local courts is not used as a cloak to enable them to commit such 
crimes with impunity. In the several expeditionary forces which the 
United States sent to friendly foreign countries in the first World War and 
in others, the military and naval officers in command have always been 
ready to prosecute before their own courts-martial any member of their own 
forces against whom the local authorities (or any individual national of 
the host country) presented prima facie evidence of having committed a 
crime or offense." Op. cit. supra, note 2, at 558. 

The United Kingdom, in the Exchange of Notes which preceded the enact- 
ment of the United States of America (Visiting Forces) Act, 1942, stated 
as one of the points on which it was indispensable first to reach an under- 
standing, that the American authorities would assume responsibility for 
trying and on conviction punishing those who were alleged on sufficient 
evidence to have committed criminal offenses in the United Kingdom, infra, 
page 130, n. 51. 

47 "This problem is one with which the Navy has dealt with since the 
Revolution, the fundamental policy being that individuals in another country 
must abide by the laws and customs of that country and that extradition or 
release from foreign jurisdiction is a matter of arbitration in each case." 
Admiral Carney to Secretary of Defense Wilson, quoted at 99 Cong. Rec, 
8770 (1953). The statement goes further, of course, and assumes the re- 
ceiving state has concurrent jurisdiction to enforce. It should be noted that 
the United States of America (Visiting Forces) Act, 1942, was carefully 
drafted to grant the American forces immunity only from the enforcement 
jurisdiction of the British courts, not to exempt them from the obligation to 
obey British laws. Infra, page 129. 



104 

mitted by a member of the armed forces, wherever he may be, 
but most though not quite all violations of the local criminal law 
are offenses under the Uniform Code of Military Justice. This 
does not resolve all difficulties, however, and neither are all the 
objections of a receiving state answered. The sending state ex- 
ercises jurisdiction through courts-martial, which may, and 
normally do, sit in the receiving state. They may, indeed, be re- 
quired to do so in some cases. 48 This meets one of the basic ob- 
jections to the exercise by a state of jurisdiction over offenses 
committed abroad because the difficulty involved in the trans- 
portation of witnesses or use of written statements is reduced. 
The effective exercise of jurisdiction requires, however, the power 
to investigate, arrest, summon witnesses, punish for contempt, 
and the like. No state is likely to permit the military authorities 
of the sending state to exercise such power over local residents, 
and it certainly cannot be required to do so. 

This difficulty can be overcome in part by arrangements for en- 
listing the cooperation of the local authorities, but trial by the 
sending state still means trial by court-martial. This is not the 
place for an appraisal of courts-martial, or specifically, American 
courts-martial, as legal institutions. It is true they are not civil 
courts, or constituted as civil courts are constituted, but is this 
relevant to the problem? For some it is, since it raises the issue 
of the supremacy of the civil authorities over the military. In the 
United Kingdom, and elsewhere in the Commonwealth, it is a 
fundamental constitutional principle that a member of the British 
armed forces is subject to the jurisdiction of the civil courts for 
any offense against the civil law, in war and peace. Even con- 
viction by a court-martial and the serving of any sentence im- 
posed by it does not preclude trial and sentence by a civil court 
for the same offense. 49 The rule in the United States is that 



48 Both the United States of America (Visiting Forces) Act, 1942, of 
Great Britain 5 & 6 Geo. 6, C. 31 and our own Service Courts of Friendly 
Foreign Forces Act, 22 U.S.C. 702 (1944), required trial in the vicinity if 
the offense was against a civilian. 

49 Professor Goodhart, in "The Legal Aspect of the American Forces in 
Great Britain," 28 A.B.A.J. 762, 763 (1942), wrote that: "* * * [T]he 
important constitutional principle * * * involved is one of the essential ones 
on which the English constitution is based. It is described by Dicey as 'the 
fixed doctrine of English law that a soldier, though a member of a standing 
army, is in England subject to all the duties and liabilities of an ordinary 



105 

courts-martial and the civil courts have concurrent jurisdiction, 
although this may not be a constitutional requirement. 50 In most 
European countries the jurisdiction of the military authorities 
over the armed forces is exclusive. 51 
The risk against which the British constitutional principle is 



citizen.' It is part — and perhaps the most important part — of 'the rule of 
law* which is the distinctive feature of the British system. 'It becomes, too, 
more and more apparent that the means by which the courts have main- 
tained the law of the constitution have been the strict insistence upon the 
two principles, first, of "equality before the law," which negatives exemp- 
tion from the liabilities of ordinary citizens or from the jurisdiction of the 
ordinary courts, and secondly, of "personal responsibility of wrongdoers," 
which excludes the notion that any breach of law on the part of a sub- 
ordinate can be justified by the orders of his superiors/ This means that 
the British soldier is subject to the jurisdiction of the ordinary courts, and 
is responsible to them for any breaches of the law which he may commit. 
So long as this principle is maintained, it will be impossible for any one to 
establish a military dictatorship in Great Britain." 

Professor Goodhart traced the history of the principle, noting a statute of 
1399 (1 Henry IV, c. 14) ; a provision of the Petition of Right (1625) ; the 
vigorous opinion of Lord Chief Justice Hale in the Case of Captain C 
[(1673) 1 Ventris 251] in which he said that "It seems you are grown 
very headstrong: that you who ought to know, that every officer and 
soldier is as liable to be arrested as a tradesman. * * * You are the King's 
servants, and intended for his defence against his enemies, and to preserve 
the peace of the Kingdom, not to exempt yourself from the authority 
of the laws. * * * Whatever you military men think, you shall find you are 
under the civil jurisdiction, and you but gnaw a file, you will break your 
teeth ere you shall prevail against it;" and the Mutiny Act of 1689, which 
said that: "Provided always, That nothing in this Act contained shall 
extend or be construed to exempt any Officer or Soldier whatsoever from 
the ordinary processe of Law." 

The principle, Professor Goodhart adds, has been so strictly maintained 
that the doctrine of "autrefois convict" does not derogate from it, although 
a soldier tried by a civil court cannot be tried for the same offense by a 
court-martial. Moreover, the principle is not affected by war or insurrection. 

60 "Courts-martial have exclusive jurisdiction of purely military offenses. 
But a person subject to the code is, as a rule, subject to the law applicable to 
persons generally, and if by an act or omission he violates the code and the 
local criminal law, the act or omission may be made the basis of a prosecution 
before a court-martial or before a proper civil tribunal, and in some cases 
before both. * * * The jurisdiction which first attaches in any case is, 
generally, entitled to proceed." Manual for Courts-Martial, United States, 
1951, p. 16. See also Lt. Comd. Griffin, "Trial by Civil or Military Courts," 
JAG J. 11. (July 1948). 

B1 Goodhart, op. tit. supra, note 59, at 762. 



106 

directed is, as Professor Goodhart says, abuse of the civil rights 
of civilians and subversion of the government by the military. 
Giving the concept the status of a constitutional principle accents 
the significance attached to it. The principle was, however, 
formulated with reference to a state's own armed forces. It can 
be argued it has no relevance to the status of visiting armed 
forces. A majority of the Canadian Supreme Court, however, 
held it applicable to visiting armed forces. 52 



62 "I have no doubt that this principle applies to all armies, British or 

foreign, except in cases in which, as by the legislation mentioned dealing 

with the American forces in England, it has been changed by legislative 

enactment, or the equivalent thereof. There can be no doubt that in Great 

Britain it is settled as indisputable that this is a principle of law applicable 

in strict law to all armies there, except in so far as it has been modified 

by statute. 

$ $ $ $ * * ♦ 

"I find it impossible to escape the conclusion that the United Kingdom has 
never assented to any rule of international law by which British courts are 
restricted in their jurisdiction in respect of visiting armies or members of 
them. In other words, no such rule as that now insisted upon has ever been 
a part of the law of England; and this applies equally to Canada. The 
fundamental constitutional principle with which it is inconsistent is a part 
of the law of every Province of Canada, the constitutional principle by 
which, that is to say, a soldier does not, in virtue of his military character, 
escape the jurisdiction of the civil courts of this country." Sir Lyman P. 
Duff, C.J.C., in Reference re Exemption of U.S. Forces from Canadian 
Criminal Law [1943] 4 D.L.R. 11, 16, 21. 

Hudson, J., concurred in the opinion. 

Rand, J., in a separate opinion, said : 

"There is no doubt that constitutional principle in England has for 
several centuries maintained the supremacy of the civil law over the mili- 
tary arm. If that principle meets the rule of immunity to foreign forces 
arising in the circumstances stated, then the latter must give way. The 
principle is intended to maintain a nation of free men through an equality 
before the law and a common liability to answer to the same civil tribunals. 
The citizen taking on the special duties of a soldier abates no jot of that 
accountability. The independence of that law and its courts in the armed 
forces would open the way to military domination and the loss of that 
freedom which equality secures. 

"Can that principle be said to be infringed by jurisdiction in a military 
court of the United States over its own forces which for the purposes of 
both countries are temporarily on our soil? It is, of course, not foreign but 
domestic military usurpation against which the principle is a bastion and it 
might strongly be argued that the objection to conceding such a jurisdiction 
is not that it is military but that it is foreign. But I have come to the 
conclusion that that principle stands in the way of implied exemption when 



107 

Whether that judgment was correct or not, the fact that states 
like the United States and Great Britain give their civil courts 
concurrent jurisdiction over their own armed forces has some 
bearing on the persuasiveness with which such a state can argue 
that its armed forces must always be under the exclusive control 
of their commander. A significant distinction in terms of control 
exists between subjecting the members of a state's armed forces 
to the jurisdiction of that state's civil courts and acquiescing in 
the exercise of jurisdiction over them by the civil courts of a 
foreign state. Yet the fact remains that a state whose armed 
forces are subject to the jurisdiction of its civil courts cannot, as 
a sending state, argue with complete impunity that military 
necessity demands they be immune from the jurisdiction of 
foreign civil courts. When in the position of a receiving state, 
such a state is likely to be reluctant to accord immunity from 
its jurisdiction to visiting forces. 

Courts of a sending state are not only courts-martial ; they are, 
by definition, foreign courts operating under a foreign system of 
law. This runs counter to a principle, related to but broader than 
the British constitutional principle referred to, and widely shared. 
It is the belief that all those within the territory of the state — 
citizens or aliens, soldiers or civilians — should be answerable to 
and be protected by the same courts administering the same 
law. 53 Any departure, for any group, whether it gives them a 

the act complained of clashes with civilian life. The question is what is the 
workable rule implied from the invitation, that fits into the fundamental legal 
and constitutional system to which it is offered. It is from the background 
of that system that the invitation and its acceptance must be interpreted. 
It cannot be said to be clear that there has been a recognition of either a 
usage or principle by the Parliament or the courts of this country or of 
Great Britian that would raise the immunity against the constitutional 
safeguard of accountability before a common tribunal. That safeguard, 
however, is concerned primarily to vindicate, not Canadian courts, but 
Canadian civil liberty. It does not, therefore, stand in the way of a rule 
limited to the relations of members of a foreign group admitted into Canada 
for temporary national purposes with persons other than members of the 
Canadian public: Cheung case (supra) and the memorandum of Sir Alex- 
ander Cockburn in the Report of the Royal Commission on Fugitive Slaves 
quoted therein." Id., at 49-50. Cf p. 128, infra, no. 43; p. 131, infra. 

53 A guest editorial from The Times Weekly Edition, London, Aug. 5, 
1942, in 28 A. B.A.J. 679, said: "For centuries it has been a fundamental 
principle of English law that all charges relating to crime alleged to have 
been committed within the realm, whatever the nationality or condition of 



108 

more or less favored position, may be met with objections. 54 The 
depth of conviction with which the view of the objectors can be 

the person accused, are matters for the determination of the King's courts 
alone." 

In the debate in the House of Commons on the Bill to implement the 
NATO Agreement, Mr. Eric Fletcher said, 505 H.C. Deb. (5th ser.) 586 
(1952) : "[M] embers of the visiting Forces and their civilian components 
will be able to commit crimes which cannot be tried in the courts of this 
country. That is something which, prima facie, shocks those who have been 
brought up to respect the deep-seated constitutional principle of this land. 

"* * * They will only be answerable for their crimes to the exclusive 
jurisdiction of foreign service courts. There has not been anything like 
that in this country since the Middle Ages, when a certain section of the 
community could claim benefit of clergy, and when there was a certain Papal 
jurisdiction which could defeat the claims of the English common law courts. 

"[It] must be somewhat humiliating for those who have always believed 
in the paramountcy of the British courts in trying and bringing to justice 
any and every crime committed in this country." 

Sir Frank Soskice, in a later debate, said: "From the point of view of the 
ordinary person, that which is the most surprising and perhaps least pleas- 
ing is the fact that an American citizen can, while in this country, commit 
grave offences and, nevertheless, not be subject to the jurisdiction of our 
own criminal courts. We are, by long tradition — as are most other 
countries — used to the concept that our criminal courts have jurisdiction 
over all offences committed within our territory * * *. 

"They [inter se and on duty offences] include a very large number of 
serious offences — murder, rape and that sort of thing. It shocks ordinary 
persons and is, prima facie, surprising to them that our own criminal courts 
should not be able to try all persons who, within the jurisdiction of those 
courts, commit those offences." 526 H. C. Deb. (5th ser.) 1290 (1954). 

64 "Exclusive criminal jurisdiction, amounting to extraterritoriality, itself 
creates difficult problems. In the eyes of the local population, it sets Ameri- 
cans apart as a special, privileged class, and this fact acts as a constant 
irritant. If American courts-martial return verdicts of acquittal, or if 
they impose sentences which seem lenient to the aggrieved parties, they are 
open to charges of favoritism. If, on the other hand — as has sometimes 
happened — they impose sentences substantially greater than those provided 
by local law for the same crime, they can be accused of flouting local 
customs and sensibilities. Regardless of how fair and just American courts- 
martial may be, the existence of exclusive criminal jurisdiction seems to the 
other country to be an infringement of its sovereignty." Letter of General 
Walter Bedell Smith, Under Secretary of State, to Senator Wiley, 99 Cong. 
Rec, 8777. (1953). 

Two amendments to the Bill to implement the NATO Agreement were 
discussed in the House of Commons, one to prohibit a sentence "not per- 
mitted by the law of the United Kingdom" and the other "Provided always 
that no one shall be punishable within the United Kingdom for an offence 



109 

held and the vigor with which it can be expressed are shown in 
the Ranollo case. 55 Such view is the cornerstone supporting the 
principle of territorial jurisdiction. 

The preceding discussion suggests these general conclusions: 
Military exigency requires that a state have jurisdiction to pre- 
scribe rules with respect to the conduct of its armed forces 
abroad, and also that it have enforcement jurisdiction in the re- 
ceiving state. Exercise of such jurisdiction must not be subject 
to any or, possibly, only the most limited supervisory jurisdiction 
of the receiving state. All of this is essential if the commander 
is to maintain that discipline which is required if the force is to 
be effective in ensuring the security of the state. It is not, how- 
ever, by any means clear that military exigency requires that the 
sending state have exclusive jurisdiction over its forces. There 



based upon racial discrimination." Neither was adopted. 505 H.C. Deb. 
(5th ser.) 1122, 1126, 1145, 1146 (1952). The NATO Agreement, Art. 7(a), 
provides: "A death sentence shall not be carried out in the receiving State 
by the authorities of the sending State if the legislation of the receiving 
State does not provide for such punishment in a similar case." 

68 Westchester County v. Ranollo, 187 Misc. 777, 67 N.Y. Supp. 2d, 31 ; 
41 A.J.I.L. 690 (1947). In rejecting the argument that all personnel ac- 
credited to the United Nations were immune, the court said: "To recognize 
the existence of a general and unrestricted immunity from suit or prosecu- 
tion on the part of the personnel of the United Nations, so long as the 
individual be performing in his official capacity, even though the individual's 
function has no relation to the importance or the success of the Organiza- 
tion's deliberations, is carrying the principle of immunity completely out 
of bounds. To establish such a principle would be in effect to create a large 
preferred class within our borders who would be immune to punishment on 
identical facts for which the average American would be subject to punish- 
ment. Any such theory does violence to and is repugnant to the American 
sense of fairness and justice and flouts the very basic principle of the United 
Nations itself, which in its preamble to its Charter affirms that it is created 
to give substance to the principle that 'the rights of all men and women are 
equal.' * * * It is only by a proper distinction of the immunity to be ac- 
corded to the personnel of the United Nations and by a proper circum- 
scription of the effect to be given the Congressional language that the 
American people can be assured that the hospitality accorded the United 
Nations on American soil will not be abused by conduct on the part of 
even the humblest of its personnel in a manner that is hostile to the Ameri- 
can concept of the equal administration of justice among our people. This 
Court feels strongly * * * that such immunity should be available only 
when it is truly necessary to assure the proper deliberations of the 
Organization * * *." 



110 

is substance to the argument that a commander must have ex- 
clusive control over the force, particularly now that modern 
weapons and technology have made reaction time so short. 
Against these considerations must be set the very real considera- 
tions supporting the territorial principle and hence jurisdiction in 
the receiving state. To these must be added the fact that any 
exercise of jurisdiction by one state in the territory of another is 
inevitably less than wholly effective because of certain inevitable 
limitations, and account must be taken of considerations support- 
ing civil jurisdiction over the military. A balance between oppos- 
ing factors is not easy to strike, and the proper decision may well 
vary with circumstances. In time of peace, however, the balance 
appears to be on the side of concurrent jurisdiction in the re- 
ceiving state. 

It is quite clear, on the other hand, that the interests of mem- 
bers of the armed forces, as individuals, are not a relevant con- 
sideration. Immunities are accorded to protect the interests of 
the state, not the individual. A member of a visiting armed force 
is, like any citizen, entitled to the protection of the ordinary rules 
of international law concerning the denial of justice, but not, as 
an individual, to any further protection. 



CHAPTER VI 
THE PRACTICE OF STATES UP TO 1945 

England, the Canal Zone, Saudi Arabia, Formosa, Germany, 
Morocco, Iceland, Iran, Australia, India, Greece, France, Spain, 
Turkey, Italy, Korea, Bermuda, Brazil, Liberia are only some of 
the places where American forces have been stationed during the 
twentieth century. This list alone suggests the remarkably diverse 
situations in which American troops abroad have found them- 
selves — and each situation has differed not only in the simple 
terms of war and peace. Even in war, they have been in combat 
zones, zones of communication and zones of the interior, far from 
the arena of actual fighting. They have occupied sectors of a front, 
served as garrisons, been in training or in passage, or manned 
naval or air bases. They have lived among the local inhabitants 
or have been quartered in geographically separate areas, at times 
have drawn heavily upon the local economy and at other times 
have been supplied largely from the United States. Similarities 
or differences in language and culture have led to much or little 
intermingling with the local inhabitants. These and other factors 
have appeared in entirely different combinations. 

If the circumstances in which troops may be stationed in a 
friendly foreign country can vary over such a wide range, pre- 
sumptively the demands of military exigency, as applied to them, 
can vary over a like range. There is no reason to assume that the 
implications of this are less significant with regard to problems of 
jurisdiction than with regard to other problems. Moreover, 
"jurisdiction" and "immunity" are also relative terms, and there 
is need to distinguish between jurisdiction to prescribe, jurisdic- 
tion to enforce, and supervisory jurisdiction; between concurrent 
and exclusive jurisdiction; between immunities for official and for 
private acts; and so on. Finally, problems of jurisdiction and of 
immunities cannot be decided by considering only the interests 
of the sending state, even when those interests center around 
security and military exigency. These must be weighed against 
those of the receiving state, and a balance struck. 



112 

Governments, perhaps more than text writers, have been aware 
of these differences. That awareness has militated against the 
acceptance by governments of a rule of international law ac- 
cording complete immunity from the local criminal law to visiting 
foreign forces in every situation. Rather they have preferred, by 
legislation or treaty, to grant, limit, or deny immunity, depending 
on the particular situation. 

Marshall's observation in The Schooner Exchange referred 
specifically to troops in passage. It was only in later dicta of the 
Supreme Court 1 and in the comments of writers that the asserted 
immunity was extended to troops stationed in a foreign country. 
The distinction is too significant to be ignored. 2 Marshall himself 



1 Coleman v. Tennessee, 97 U.S. 509, 516 (1878). Dow v. Johnson, 100 
U.S. 158,165 (1879). 

3 "Finally, the Chief Justice expressly limited his remarks about the ex- 
emption of the foreign forces to troops in passage. Completely different 
considerations determine the immunity which must necessarily attend passing 
troops on, as the Chief Justice evidently envisioned it, a mission of urgency 
and immediacy, perhaps never to return via that country, and troops sta- 
tioned in a friendly state in time of peace for an indeterminate period. 
The path of troops en route was, in Marshall's day, a narrow, clearly de- 
fined avenue. Presumably, the path of the march was completely within the 
control of the troop commander. It might very well have been considered 
that such troops, in transit, were constantly on duty. On the other hand, 
today's troop locations are dispersed throughout the receiving state and 
place the individual soldier in necessary daily contact with the local resi- 
dents. The control which the commanding officer has over every individual 
action of the troops is naturally far less than that exercised over troops on 
the march, or quartered in a temporary camp for the night. Completely 
different problems pertaining to criminal jurisdiction over the members of 
the forces necessarily arise out of these different circumstances." Statement 
of Attorney General Brownell, 99 Cong. Rec, 8767 (1953). See also the 
statement of Assistant Attorney General Rankin, Hearings on H.J. Res. 
309, Before the House Committee on Foreign Affairs, 84th Cong., 1st Sess. 
264 (1955). 

Senator Ferguson observed that Marshall "spoke of 'the free passage' of 
troops and the 'waiver of all jurisdiction over the troops, during their 
passage.' This has to do with the movement of troops, somewhat analogous 
to the shipment of goods in bond from one country to another through the 
territory of a third. Marshall could not, in 1812, have conceived of a situa- 
tion in which large numbers of troops would be stationed for long periods of 
time in the territory of friendly foreign powers under a multilateral agree- 
ment for mutual defense." 99 Cong. Rec. 8759 (1953). See also id., 8733, 
remarks by Senator Knowland. 

The Restatement, Foreign Relations Law, makes the distinction, stating in 



113 

said : "It is obvious that the passage of an army through a foreign 
territory will probably be at all times inconvenient and injurious, 
and would often be imminently dangerous to the sovereign 
through whose dominion it passed." 3 The danger referred to 
may be as much to the constituted government as to the inhabi- 
tants. The inconvenience and injury is presumably that borne 
principally by the inhabitants. The risks thus implicit in the pas- 
sage of troops are clearly less than those involved when troops 
are stationed in a country. If troops are in passage they may well 
follow a clearly defined route, be under the more immediate con- 
trol of their officers and mingle less with the inhabitants than 
when they are spread through the country. Again, the time they 
will be in the country may be limited, a factor which bears both 
on the risk to the local inhabitants and the inconvenience to the 
commander if one of his men is arrested by the local authorities. 4 
The analogy which suggests itself is that to a warship in a 
foreign port. 

The line between troops in passage and those stationed in a 
country is not easy to draw, much less easy today than in 
Marshall's time. All the American ground troops in England 
(and the same was true in some other areas) in both World War 

Section 61, p. 192, that: "Except as otherwise expressly indicated by the 
territorial state, its consenting to the passage of a foreign force through 
its territory implies that it waives its right to exercise enforcement jurisdic- 
tion over the members of the force for violations of the criminal law of the 
territorial state during the passage, and the passage implies that the sending 
state agrees to take punitive action." Presumably, the term "passage," as 
used in this Section, is to be narrowly denned. See Comment a, at 193, 
which states in part that "In the case of a force in passage * * * the pur- 
poses of both the sending and territorial states are to expedite and facilitate 
a rapid transit in order that the force may proceed on its mission." (Em- 
phasis added.) 

8 The Schooner Exchange, 11 U.S. (7 Cranch) 116, 140 (1812). 

4 It was suggested that if individuals stray from the main body they 
should no longer enjoy immunity. See Taylor, Inter. Public Law 230 (1901). 
Woolsey said: "If we are not deceived, crimes committed along the line of 
march, away from the body of the army, as pilfering and marauding, au- 
thorize arrest by the magistrates of the country, and a demand at least, that 
the commanding officers shall bring such crimes to a speedy trial." Inter. 
Law 102 (4th ed., 1875). In 1 Pitt-Corbett's Cases on International Law 
274 (5th ed., 1931), the editor remarked that "in the case of offences com- 
mitted outside the line of march or away from the main body, the punish- 
ment of the offender may, and perhaps should, be left to the local au- 
thorities." 



114 

I and World War II were, in a sense, in passage. They were 
nevertheless there for long periods and a part of their training 
was received there. This is a far cry from the situation when the 
United States allowed Britain to move troops over the Grand 
Trunk Railway to Canada, 5 or when Mexican troops were per- 
mitted to pass through American territory to lower California to 
quell a rebellion. 6 It was presumably the latter kind of passage 
of troops which Marshall had in mind, and he might well not have 
taken the same view of the situation of American forces "in 
passage" through England. This is another way of saying that 
even troops in passage raise many problems that cannot be solved 
by a single simple rule. 

A friendly army may also enter an area by force of arms in 
order to liberate, as the allied armies entered Western Europe 
and other territories in World War II. The necessity that the 
commander of the liberating army exercise complete control over 
the forces under his command, and perhaps over the civilian 
population as well, may be as compelling as if the occupation 
were of hostile territory. Furthermore, in this situation the "re- 
ceiving" state has jurisdiction only in a theoretical sense. In fact, 
its power to exercise jurisdiction may have ceased to exist and 
been superseded by that of its conqueror. Practically, that power 
cannot be restored until the territory has been liberated and the 
civil government reconstituted. The agreements made with 
governments-in-exile in World War II, giving the commander of 
the liberating armies such jurisdiction as in his discretion he 
believed it necessary to exercise and contemplating only a gradual 
shift of jurisdiction to the civil authorities, recognized the prac- 
tical necessities of the situation. 7 If such agreements had not 
been made, the commander would have had to exercise the same 
power, and where they were not, he did so. 8 



6 Fiore, Nouveau Droit International Public 468 (2d. ed. Antoine transl. 
1885). 

6 99 Cong. Rec, 8733 (1953) (remarks by Senator Knowland). 

7 See Agreement between the United States and Norway of May 16, 1944, 
67 U.N.T.S. 254 (1950). 

Similar agreements were made on the same day between the United 
Kingdom and Belgium, 90 U.N.T.S. 284 (1951) and on August 25, 1944 be- 
tween the United States and France, 138 U.N.T.S. 248 (1952). All the 
agreements related to the Allied forces, not simply to those of the United 
States or Great Britain. 

8 "Everywhere else in Europe, on the Continent, and in Africa, we en- 



115 

In World War I a comparable, though not identical, situation 
obtained when the respective Allied armies each occupied an 
assigned sector or sectors in the combat zone. These were not 
only areas of actual military operations, but in varying degrees 
the civil population had been evacuated and the civil authorities 
had ceased to function. The combat zone never, it is true, ex- 
tended to large areas of France (or Italy) nor had the civil au- 
thorities ceased to function outside the combat zone, but France, 
apart from the combat zone was, in military terms, a zone of com- 
munications. The Allied forces were largely in the combat zone 
in the early stages of the war but this became less true, par- 
ticularly of the American forces when they arrived in large 
numbers. 

A series of agreements between France, Belgium and their 
allies regulated the status of the Allied forces in World War I. 
There has been much debate 9 regarding the implication of these 
agreements with respect to whether international law recognizes 
the immunity of visiting forces from the local criminal juris- 
diction. 

The first of these agreements, the Franco-Belgian Agreement, 
of August 14, 1914 10 was patently designed, at least primarily, 

tered by force of arms, either as liberators or as conquerors, or as a 
combination of the two, depending on how you would interpret it and we 
interpreted it as we saw fit. 

"* * * So we established civil law during the time we were there by 
force of arms, either as unwelcome or welcome guests; we maintained extra- 
territoriality or we had it granted without argument." General Walter B. 
Smith, Under Secretary of State, Hearings before the Senate Foreign Rela- 
tions Committee, 83rd Cong., 1st Sess. 23 (1953). 

S. Exec. Rpt. No. 1, (Senate Foreign Relations Committee) 83d Cong., 
1st Sess., 1 Amer. For. Policy 1950-1955, 1561 at 1562 on the NATO 
treaties said that: "Everywhere on the Continent of Europe, however, 
United States forces entered during World War II by force, either as 
liberators or conquerors, and made their own laws." 

6 King, "Jurisdiction Over Friendly Foreign Armed Forces," 36 A.J.I.L. 
549, 551 (1942) ; Barton "Immunity From Supervisory Jurisdiction," 1949 
Brit. Yb. Int'l. L. 380, 387, 390. 

"Journal Officiel de la Republique Francaise, Dec. 4, 1914, Barton, id., 
388. The agreement, entered into "the better to assure the prosecution of 
acts prejudicial to the armies of the two nations," provided that: 

"The French and Belgian governments are in accord to apply, each 

in that which concerns it, the principle according to which each army 

retains its jurisdiction with respect to acts capable of prejudicing it, 

whatever the territory where it is found or the nationality of the 



116 

to deal with offenses against the troops by civilians rather than 
by troops against the civilian population and thus accents the 
similarity between the Allied armies and an army of occupation 
by consent, responsible for the administration of a particular 
area. More than a year later, on December 15, 1915, when the 
British forces had been in France for nearly two years, an 
Anglo-French treaty was concluded. 11 This Anglo-French Decla- 
ration, unlike the prior Franco-Belgian agreement, specifically 
provided for the exclusive jurisdiction of the sending state over 
its armed forces but also — and practically this was the important 
provision — negatived the jurisdiction of the sending state over 
all persons not members of that force. The Anglo-French agree- 
ment was the model for agreements between France and Belgium, 
Serbia, Italy and Siam 12 and for the Franco- American Agree- 
ment of January 1918. 13 The latter agreement, although some- 



culprit. In derogation of this principle it is understood that Belgian 
nationals guilty of acts prejudicial to the French army will be delivered 
to the Belgian authorities to be tried by them according to the laws 
of Belgium: in French territory, the Belgian army will apply as occa- 
sion requires this same rule." 
11 The agreement took the form of a joint Declaration (London Gazette, 

Dec. 15, 1915), Foreign Rel. U.S. (Supp. 2) 735 (1918). The Declaration 

read in part: 

"His Britanic Majesty's government and the Government of the 
French Republic agree to recognize during the present war the ex- 
clusive competence of the tribunals of their respective Armies with re- 
gard to persons belonging to those Armies in whatever territory and of 
whatever nationality the accused may be. 

"* * * The two Governments further agree to recognize during the 
present war the exclusive competence in French territory of French 
justice with regard to (persons not belonging to) the British Army 
who may commit acts prejudicial to that Army and the exclusive 
competence in British territory of British justice with regard to (per- 
sons not belonging to) the French Army who may commit acts prej- 
udicial to the said Army." 
The translation quoted reads, where parentheses appear above, "foreign 

persons in" but this is an obvious mistranslation of the French original 

"des personnes etrangeres a." The phrase "persons not belonging to" appears 

in the Franco- American Agreement, Foreign Rel. U.S. (Supp. 2) 737 (1918). 
u Chalufour, Le Statut Juridique des Troupes Alliees pendant la Guerre 

1914-1918,51 (1927). 

18 Exchange of Notes of Jan. 3 and Jan. 14, 18, Foreign Rel., U.S. (Supp. 

2), 737 (1918). 



117 

what more precisely phrased, was in substance the same as the 
Anglo-French agreement. 14 

The agreements were made well after the allied armies arrived 
in France. It appears that immunity had nevertheless been ac- 
corded these troops before the agreements were made. 15 This is 
said to have been prompted by French recognition that they were 
entitled to that status under international law. 16 The agreements 
were consistently respected by the French authorities. 17 They 
were later cited in the British Parliament as evidence of the rule 
of international law and as justifying the grant of comparable 



14 See also the Belgian American Exchange of Notes of July 5, 1918 and 
September 6, 1918, id., at 747 and 751. 

15 Miss Chalufour states that the substance of the Anglo-French declara- 
tion had been agreed upon at a conference held March 19-23, 1915; "[I]t 
seems surprising that six months and a half of continued presence of the 
British troops on French soil should have preceded the appearance of an 
official declaration on the matter, but inquiry * * * revealed that the prac- 
tice for the first months coincided with the principle published in the 
Declaration of December 15, 1915." Chalufour, op. cit. supra, note 12, at 50. 

16 Colonel King quotes (36 A.J.I.L. 549 at 550) the final report of August 
19, 1919, of the Judge Advocate of the A.E.F., General Bethel: 

"There had been received from France a bare invitation to send our 
armies to cooperate with hers without any agreement whatsoever as to 
the legal relations of the forces and as to the status of an American 
Army on French soil. On inquiry, however, at the French War Office, 
upon our arrival in France, it was found that the French view was 
precisely the same as our own; that under the general principles of in- 
ternational law members of the American Expeditionary Forces were 
answerable only to American tribunals for such offenses as they might 
commit in France. As the principle needed a somewhat broader scope, 
however, than its mere application to our Army in France, it was later 
agreed between the diplomatic departments of the governments that 
each should possess exclusive criminal jurisdiction over its land and sea 
forces whether in the territory of either nation or on the high seas." 

17 In Ministere Public c. Bomans the Tribune Correctionnel de la Seine 
(10 e Chambre) held that a deserter from the Belgian army was not subject 
to the jurisdiction of the French court. Chalufour, op. cit. supra, note 12, at 
63, Barton, 1950 Brit. Yb. Int'l. L. 186, 188. In Ministere Public c. Pratt, 
[1919-1922] Ann. Dig. 332 (No. 240), the lower courts had held they had 
no jurisdiction to try an American army captain charged with fraudulent 
misappropriation of goods to the prejudice of the French State although the 
defendant had been demobilized before the date of his arrest. However, 
the American authorities had intimated that the American military court 
had no jurisdiction and the Court of Cassation, reversing the lower court, 
held that since both governments had recognized that the agreement was 
not applicable, there was jurisdiction in the French Court. 



118 

status to allied troops in Britain. 18 But even though these agree- 
ments recognized the exclusive jurisdiction of the sending state 
over its forces and may in this regard have been, at least in the 
American and French views, declaratory of international law, 
these attitudes were taken in the circumstances then existing in 
France and at least arguably in the light of those circumstances. 19 
Clunet, in commenting on these arrangements, compares, though 
he does not assimilate, the allied armies to armies of occupation 20 



18 During the debate on The United States of America (Visiting Forces) 
Bill, the Home Secretary, Mr. Morrison, said: "Moreover, even if we were 
disposed on the merits of the case to resist the claim of the Government of 
the United States, we should be in a rather poor debating position because 
we ourselves successfully made precisely the same claim in the case of 
British forces in France in the last war. * * *" But Mr. Garro Jones re- 
marked that: "* * * I think it is rather misleading to suggest that this 
Bill follows the analogy of what was done in France in the last war. There 
the British troops were engaged in active combat service in zones which, 
with certain exceptions, were forbidden to civilian access, and although there 
was a certain number of British troops mingling with the French popula- 
tion, the degree of contact with the French civil population * * * was 
nothing like the degree of contact which the American Forces must in- 
evitably have with the British population here." 381 H.C. Deb., (5th ser.) 
877, 883 (1942). See also the comments of Mr. Davis and Dr. Thomas, 
id., at 894 and 900. 

19 The fact that it was deemed necessary to negative, partially in the 
Franco-Belgian Agreement and completely in the Anglo-French Agreement, 
the jurisdiction of the Allied military forces over those not in their armies, 
is significant. No one ever suggested the Allied military authorities had 
such jurisdiction in the United Kingdom and the problem is not touched in 
any of the agreements or statutes relating to allied forces in the United 
Kingdom. There is here seemingly a tacit assumption that the situation in 
France was distinguishable. See generally, the Reporter's Note to Sec. 62, 
Restatement, Foreign Relations Law, p. 197, relating to the effect of 
hostilities on criminal jurisdiction over forces. 

20 45 Journal du Droit International, 1918. Barton states, 1950 Brit. Yb. 
Int'l. L. 186, 193, that in the north of Italy, where the British occupied a 
sector in the combat zone, the Italian government recognized the exclusive 
jurisdiction of the British service courts over the British armed forces; that 
it also recognized the right of the British service court to exercise jurisdiction 
outside the combat zone but strenuously maintained that offenders against 
Italian law were liable to be tried in Italian courts. He states the British 
government did not dissent but proposed an agreement comparable to the 
agreement that both Britain and Italy had with France but the war ended 
before it was signed. 

The Supreme Court of the United States has drawn a like distinction 
with respect to the jurisdiction of courts-martial over civilian employees of 



119 

and there was reluctance on the part of the British to consider 
these agreements applicable in the United Kingdom in spite of 
their reciprocal provisions. 21 

Americans were the only foreign forces stationed in the United 
Kingdom in significant numbers in World War I. The British 
Government was reluctantly prepared to grant by treaty exclu- 
sive jurisdiction over the American troops to the American mili- 
tary authorities — it made it clear that it did not believe there was 
an obligation to do so under international law. It did indicate, 
nevertheless, that in its view the American troops were, under 
international law, entitled to immunity from the local criminal 
law for offenses committed within their quarters or camps. 

Negotiations were initiated by a note of the Foreign Office 
dated September 5, 1917. 22 The note conceded both American 
jurisdiction over its troops and their immunity from British 
jurisdiction "within the limit of the quarters occupied by them," 
but expressly affirmed the jurisdiction of the British courts over 
offenses against British law committed elsewhere. Moreover, it 
not only denied the right of the British authorities, without 

the armed forces and dependents. Thus, in Mr. Justice Black's opinion in 
Reid v. Covert, 354 U.S. 1 (1957) at 34 he said: "While we recognize that 
the 'war powers' of the Congress and the Executive are broad, we reject 
the Government's argument that present threats to peace permit military 
trial of civilians accompanying the armed forces in an area where no actual 
hostilities are under way. The exigencies which have required military rule 
on the battle front are not present in areas where no conflict exists." 

In a footnote, the Justice said: "Madsden v. Kinsella, 343 U.S. 341, is not 
controlling here. It concerned trials in enemy territory which had been 
conquered and held by force of arms and which was being governed at the 
time by our military forces. In such areas the Army commander can es- 
tablish military or civilian commissions as an arm of the occupation to try 
everyone in the occupied area, whether they are connected with the Army 
or not." 

21 See Barton's discussion, id., at 189-91, of Rex v. Aughet, Court of 
Criminal Appeals, 34 L.T.R. (N.S.) 3021 (Cr. App. 1917-1918), the one 
litigated case regarding the status in the United Kingdom of a member of 
a foreign army of a country with which Britain had such an agreement. 

Perhaps as significant is the remark of the Lord Chancellor in moving 
the second reading of The United States of America (Visiting Forces) 
Bill, when, referring to the Anglo-French Declaration, he said : "Apart from 
this legislation, there can be no doubt that in any such case [of an offense 
in the United Kingdom against the criminal law] there would be jurisdic- 
tion in the British Courts." 124 H.L. Deb., (5th ser.) 61 (1942). 

22 Foreign Rel. U.S., (Supp. 2) 733 (1918). 



120 

enabling legislation, to assist the Americans in enforcing military 
discipline 23 but also denied the right of the American authorities 
to exercise such jurisdiction outside the limit of their quarters 24 
and proposed the issuing of an enabling regulation under the 
Defense of the Realm Act. 25 

The American reply 26 did not challenge the assertion of the 
Foreign Office that "outside the limit of their quarters, however, 
they are liable to be dealt with by the English criminal courts for 
any offenses against the English law * * *." Rather, it suggested 
the desirability of a comprehensive reciprocal agreement, such 
as that between Britain and France, giving the sending state 
exclusive jurisdiction. This seems to imply that such an agree- 
ment was necessary to give exclusive jurisdiction. Furthermore, 
the reply stated: "It is doubtful, however, what effect the courts 
in the United States would give such an informal agreement," 
again implying that exclusive jurisdiction would not exist without 
an agreement. 



28 The right of the British authorities to arrest American troops for vio- 
lations of military discipline was denied. This position was consistent with 
the rule that a state will not undertake to enforce the penal laws of 
another state. The note also denied that the British authorities could turn 
over to the American authorities those arrested for violations of British 
criminal law, although the practice in the case of the crews of warships was 
to the contrary. 

24 Specifically, to arrest for a military offense. 

25 "* * * [G]iving power to the British military authorities in general 
terms to make and revoke or vary orders from time to time for subjecting 
United States and other Allied troops in this country to their own system 
of military discipline and for arresting them and handing them over to their 
own military authorities * * * in case of any alleged military or criminal 
offense whether such offense was contrary to English law or not." The last 
phrase can be read as meaning it was contemplated the American authori- 
ties would, in practice, be given exclusive jurisdiction. 

29 Feb. 5, 1918, Foreign Rel., U.S. (Supp. 2) 739 (1918). The reply was 
directly to a second Foreign Office note — the first having gone unanswered — 
which indicated that the situation had become more urgent and suggested 
the need for legislation "which would at all events enable them [the Ameri- 
can authorities] to compel witnesses to attend American courts-martial in 
this country." It also referred to the need for "empowering American Judge 
Advocates to administer oaths outside the precincts of camps or buildings 
specially allotted for the use of American troops. * * *" Jan. 18, 1918, 
Foreign Rel., U.S. (Supp. 2) 737 (1918). 

The Regulation later issued makes it clear the reference was to compelling 
the attendance of and administering oaths to witnesses other than members 
of the American forces. 



121 

The Foreign Office reply to the United States forwarded a 
draft copy of a proposed regulation which with minor modifica- 
tions became Regulation 45F of the Defense of the Realm Regula- 
tions, 27 and a draft Order of the Army Council. The regulation 
and order related only to the exercise of enforcement jurisdiction 
by the American authorities and to assistance to them by the 
British authorities, expressly excluding the exercise of super- 
visory jurisdiction by the British courts except on the issue of 
membership in a foreign force. 

Thereafter the Foreign Office put forward a proposal that "in 
order to complete the arrangements * * * and to dispose of certain 
questions as to jurisdiction," a convention should be concluded 
similar to that between Britain and France, but that Great 
Britain — not the United States- — should have exclusive jurisdic- 
tion over certain offenses. 28 



27 [1918] 1 Stat. Rules & Orders 332 (No. 367). The heart of the draft 
was in the first paragraph: "It is hereby declared that the naval and mili- 
tary authorities and courts of an Ally may exercise in relation to the mem- 
bers of any naval or military force of that Ally who may for the time being 
be in the United Kingdom all such powers as are conferred on them by the 
law of that Ally." 

Paragraph 2 contemplated the issuance of orders authorizing the arrest 
of members of a foreign force "alleged to have been guilty of offenses" and 
handing them over to their military authorities to be dealt with "by the 
naval or military authorities or courts of the Ally according to the law of 
the Ally"; paragraph 3 authorized the competent British naval or military 
authority to issue orders requiring "any person not being a member of any 
naval or military force of that Ally" to appear as a witness or produce 
documents before a naval or military court of the Ally and made failure to 
comply an offense against the Regulations; paragraphs 4 and 5 made con- 
tempt or prejury by such a person an offense against the Regulation; para- 
graph 6 stated "It shall be lawful for a member of a naval or military 
[court of] an Ally * * * to administer oaths to witnesses." 

Paragraph 9 is perhaps the most important of all the provisions, since it 
expressly negatived supervisory jurisdiction of the British courts and left 
only the issue of membership in the visiting force for their possible ad- 
judication. 

28 The offenses were: (a) Treason; (b) An offense against Official Secrets 
Act, 1911; (c) An offense against Defense of the Realm Regulations Nos. 18, 
18A, 19A, 22A, or 27A, except where the offense is solely prejudicial to 
the armed forces of the United States of America; (d) An offense against 
Defense of the Realm Regulation No. 48 in relation to any offense above 
included. 

This was not the equivalent of saying that the British should have jurisdic- 



122 

The reaction of the State Department was, for the first time in 
the negotiations, vigorous. "The note * * * is regarded by this 
Government as containing conditions which would create a very 
dangerous situation as regards the forces of this Government in 
British territory. The competent authorities of this Government 
are of the opinion that the result of entering into an agreement 
such as that proposed * * * would be a partial surrender by the 
American forces to the British Government of jurisdiction over 
the military forces of the United States located within British 
territorial limits for offenses committed on American warships 
or in American camps, and would involve the lack of proper 
recognition of the character and competency of the existing 
American military tribunals." 29 The reply concluded by sug- 
gesting an agreement modeled on that between the United States 
and France. 

Thereafter the negotiations dragged on for a year and a half 
until, in January 1920, it was agreed that, the American forces 
having been withdrawn from Great Britain, no agreement was 
necessary. For a time it had appeared that an agreement giving 
the American authorities exclusive jurisdiction would be reached 
but there were also indications to the contrary. 30 

tion where the offense violated British but not American law, since an act 
which constituted one of the enumerated offenses could be a violation of 
American law as well. 

"July 17, 1918, Foreign Rel. U.S. (Supp. 2) 748 (1918). (Emphasis 
added.) 

80 There was no reply to the American communication of July 17, 1918, 
until December 9, 1918, when the Charge advised the Secretary of State: 
"[The] Foreign Office inform [ed] me that British military authorities are 
prepared in deference to [the] wishes of the United States Government to 
agree to [the] omission," of the reservation of exclusive British jurisdiction 
in certain instances, as noted above, and inquired whether an agreement 
similar to that between France and the United States was desired. The 
same day the State Department replied in the affirmative, but nothing 
further transpired until June 5, 1919, when the British Government put 
forward a draft of a proposed agreement. The important paragraph stated 
that the two Governments agreed "to recognize during the present war the 
exclusive jurisdiction of the tribunals of their respective Armies with regard 
to persons subject to the military law of those Armies whatever be the 
territory in which they operate or the nationality of the accused." The 
proposal covered only those subject to military law, not to naval or air 
force law, as to which it would be necessary "to consult the Admiralty and 
the Air Ministry." The United States countered on August 13, 1919, with 
a draft which provided for "the exclusive jurisdiction of the tribunals of 



123 

With respect to these negotiations, it can be said: (1) Both the 
American and British negotiators assumed that the American 
military authorities had jurisdiction to enforce American military 
regulations within the quarters occupied by the American forces ; 
(2) municipal legislation was, however, required to enable them 
to exercise police power outside those limits and to make available 
the assistance of the British authorities to arrest for violations 
of such military regulations, or to turn over members of the 
American forces arrested for offenses against British law, or to 
summon, swear, and punish for contempt or pre jury, witnesses 
other than American troops, e.g., British subjects; (3) the provi- 
sion of Regulation 45F barring supervisory jurisdiction of the 
British courts may or may not have been deemed necessary to 
preclude the exercise of such jurisdiction. 31 

There is no doubt that, as Barton suggests, 32 the primary pur- 
pose of the negotiations was to ensure that the American authori- 
ties could exercise military discipline over American troops. More- 
over, the desultory character of the negotiations after this had 



their respective land and sea forces with regard to persons subject to the 
jurisdiction of forces whatever be the territory in which they operate or 
the nationality of the accused." "Persons" was denned to include "together 
with the persons enrolled in the Army, Navy and Marine Corps, any other 
person who under the American or British law is subject to military or 
naval jurisdiction, especially members of the Red Cross regularly accepted 
by the Government of the United States or the Government of Great Britain 
in so far as the American or British law and the customs of war place 
them under military or naval jurisdiction." 

Four months later the Ambassador advised the State Department that he 
had learned "informally that upon the Foreign Office's referring the military 
convention proposal to the departments concerned, the latter have delayed 
replying upon the assumption that with the conclusion of peace the matter 
would lapse. The Foreign Office has conveyed to them its decision to reply to 
my representation no later than the 28th instant, but this answer will 
probably be unfavorable to the proposed convention." Thereafter, on January 
30, 1920, the State Department acquiesced in the abandonment of the project. 

Foreign Rel. U.S. (Supp. 2) 751, 752, 753, 755, 759, 760 (1918). 

81 "Not only is that the recognized rule of International Law, but, in 
order that there should be no question raised at all when the American 
Forces did come over here in very large numbers in the period of the Great 
War, there was a regulation passed under the Defence of the Realm Act 
which stated in terms what their position was * * *." Viscount Hailsham, 
80 H.L. Deb., (5th ser.) 482 (1932). 

"Barton, "Foreign Armed Forces: Qualified Jurisdictional Immunity," 
1954 Brit. Yb. In? I. L. 341, 343. 



124 

been achieved by the issue of Regulation 45F suggests that it was 
the only matter which either Government considered of com- 
pelling importance. The issue of exclusive jurisdiction in the 
sending state did, however, come into the negotiations and the 
positions taken are significant regarding the then attitudes of 
the two Governments. The American Government did not press 
the issue, perhaps because "so far as is recalled by officers of our 
Army who were in a position to know the facts, no trial of a 
soldier of the American Expeditionary Forces by a British court 
actually occurred." 33 

Between the wars, the enactment of the Statute of Westminster, 
changing the relationship between the United Kingdom and the 
Dominions, prompted the passage of The Visiting Forces (British 
Commonwealth) Act, 1933. 34 The legislation was recommended 
by a committee established at the Imperial Conference of 1926, 35 
and the Act was intended as a model for comparable legislation 
in the Dominions. 

Much has been made of the reference in the committee's report 
to "provision for the customary extra-territorial immunity." It 
has been said that since the Act did not grant immunity from the 
jurisdiction of the British criminal courts, Parliament must have 
believed no rule of international law required recognition of the 
latter immunity. The debate reflects, however, a sense of the 



88 King, op. cit. supra, note 9, at 553. But the Attorney General, in the 
debate on The United States of America (Visiting Forces) Act, 1940, stated 
that "We had American troops in the last war, and the Americans made 
exactly the same request that they are making today; it was only because 
the time was shorter, and that agreement was not come to, that Parliament 
was not asked to legislate on these lines. But in fact American soldiers were 
dealt with by our courts, and they made exactly the same request." 382 
H.C. Deb. (5th ser.) 929-30 (1942). (Emphasis added.) 

84 23 & 24 Geo. 5, c. 6. 

85 "In connection with the exercise of extra-territorial powers, we consider 
that provision should be made for the customary extra-territorial im- 
munity with regard to internal discipline enjoyed by the armed forces of 
one Government when present in the territory of another Government with 
the consent of the latter. * * * We recommend that provision should be 
made by each member of the Commonwealth to give effect to such custo- 
mary extra-territorial immunities within its territory as regards other mem- 
bers of the Commonwealth." Report of the Conference on the Operation of 
Dominion Legislation and Merchant Shipping Legislation, 1929, par. 44 
(Cmd. 3479, 1930), Schwelb, "The Status of the United States Forces in 
English Law," 38 A.J.I.L. 50, 51 (1944). 



125 

distinction between the then relationship of the United Kingdom 
and the Dominions and that between independent sovereign 
states, which deprives the argument of much of its force. 36 

The Bill, which drew heavily on Regulation 45F of the Defence 
of the Realm Regulations, contained two important provisions. 
Section 1(1) authorized the exercise of jurisdiction by the mili- 
tary authorities of visiting Commonwealth forces and Section 
1 (3) negatived the supervisory jurisdiction of the British courts, 
except on the issue of membership in the Dominion force. The 
debate related only to the necessity of the authorization, 37 and 
to the scope of the supervisory jurisdiction which the British 
courts should retain. 38 The Solicitor General alone, in supporting 



86 Sir Stafford Cripps, 275 H.C. Deb. (5th ser.) 1483, 1487 (1933); Lord 
Buckmaster, 86 H.L. Deb. (5th ser.) 486 (1932) ; Lord Atkin, 86 H.L. Deb. 
(5th ser.) 350 (1932). See also the letter of Lord Atkin in The Times, Feb. 
8, 1933, in which he said: "It would surprise me to find that our Dominion 
fellow-subjects desire to be treated as foreign forces; or that any interna- 
tional lawyer would seek to apply the doctrines of extraterritoriality and 
diplomatic immunity to the relations of this country with the forces and 
representatives of the Dominions who owe a common allegiance to one 
Sovereign." See also Wright v. Cantrell. [1943-1945] Ann. Dig. 133 (No. 
37) ; [1943] U.L.R. 185; [1943] A.L.R. 427, in which it was said: "No light 
is supplied by the Visiting Forces (British Commonwealth) Act, 1933 (23 
Geo. V, cap. 6), as this is concerned with domestic arrangements within 
the British Empire." 

87 It was common ground that Parliamentary authorization was necessary 
before Dominion military authorities could exercise jurisdiction. Viscount 
Hailsham, Secretary of State for War, 86 H.L. Deb., (5th ser.) 354, 355 
(1932). 

Earl Stanhope, Under Secretary of State for War, 85 H.L. Deb. (5th 
ser.) 808 (1932). 

There was debate, however, as to whether such authorization was neces- 
sary before jurisdiction could be exercised when the forces of one independent 
sovereign were in the territory of another, the Government taking the view 
it was not. Sir Stafford Cripps, in opposition, said: "No Dominion has any 
right to send a court to this country and to administer justice here, unless it 
gets authority from the Crown, any more than any foreign state would 
have the right to do the same thing. The question to which objection is 
raised is not one of Dominion law, as I understand it; it is a question of 
English law, namely, whether a man is rightly imprisoned in this country." 
270 H.C. Deb., (5th ser.) 1088 (1932). 

But the Solicitor General, Sir Boyd Merriman, disagreed. See, however, 
Lord Croft, Joint Parliamentary Under-Secretary of State for War, 117 
H.L. Deb. (5th ser.) 195 (1940). 

88 Opposition to the Act centered on the provision which deprived the 



126 

the Bill, ranged beyond the immediate issues and expressed the 
view that visiting armed forces were immune from the jurisdic- 
tion of the local criminal courts, while within their own quarters 
or lines. 39 

British court of virtually all supervisory jurisdiction over the service courts 
and authorities of visiting Dominion forces. It was contended that the writ 
of habeas corpus should be available to one imprisoned by order of a service 
court, so that he might raise in a civil court the issue of whether the 
service court had jurisdiction and acted within its jurisdiction. The opposi- 
tion wished to ensure that no one physically in the United Kingdom could 
be imprisoned without the right to appeal to a British civil court. The issue 
was of civil liberty, specifically the civil liberty of the members of the 
Dominion forces. Sir Stafford Cripps, 275 H.C. Deb. (5th ser.) 1112 (1933) 
and 275 H.C. Deb. (5th ser.) 1483 (1933) ; Sir Walter Greaves-Lord, 270 
H.C. Deb. (5th ser.) 1083 (1932) ; Lord Atkin, 86 H.L. Deb. (5th ser.) 351 
(1932); Viscount Hailsham, Secretary of State for War, 86 H.L. Deb. (5th 
ser.) 481-84 (1932). Lord Wright, in a dictum in Amand v. Home Secre- 
tary [1943] A.C. 147, 159, a habeas corpus proceeding brought where a 
Dutch subject was charged by the Dutch authorities with desertion from 
the Dutch forces said, however: "It is clear that the statutory provisions 
here in question (The Allied Forces Act, 1940) involve a peculiar in- 
terference with the freedom of a person resident in this country. He may 
under them be subjected to a special jurisdiction, no doubt similar to that 
to which a person subject to British military law is subject, but vitally 
different in that he is subjected to a foreign jurisdiction and code of law, 
that of the Dutch government enforcing its military law. There is, there- 
fore, introduced a species of extraterritorial jurisdiction however limited, 
and the Dutch service courts are given jurisdiction to enforce their sentences. 
But this jurisdiction is only possible so far as it is authorized by the 
British legislature and can only be exercised in accordance with the statutory 
provisions referred to and subject to the conditions and safeguards specified 
by statute. In particular, the British court must be satisfied that the person 
in question is subject to Dutch military law and is, prima facie at least, an 
offender against that law. In these matters the British court has jurisdic- 
tion and the person concerned is entitled to exercise all the rights which the 
British law affords to safeguard his liberty." [Emphasis added.] 

89 The Solicitor General, Sir Boyd Merriman, in several instances seemed 
to recognize the existence of a broader immunity but when pressed, said: 
"With regard to the American troops, it was a considerable time after they 
came to this country that the Defence of the Realm regulations were passed, 
and for this reason * * * that the principle of international law applies, as 
I understand it, to an organised body so long as it remains an organised 
body and if they are here by our invitation, they are exempted from our 
sovereignty while they are in their own quarters or lines. Manifestly, there 
are difficulties of defining exactly what these limits may be; and manifestly 
when you had hundreds of thousands of American troops in this country, it 
was necessary to have something more definite than the international prin- 



127 

On the whole, the enactment of The Visiting Forces (British 
Commonwealth) Act and the debate which preceded its passage 
indicate the British view was that visiting foreign forces (though 
not Dominion forces) were entitled to exercise jurisdiction over 
their troops free from the supervisory jurisdiction of the British 
courts. It cannot be said, however, that any indication was given 
that the British Government considered foreign forces entitled 
to immunity from the local criminal jurisdiction. 40 Even the re- 
marks of the Solicitor General go no further than to suggest such 
an immunity for acts committed within their quarters or lines by 
foreign forces. 

The Visiting Forces (British Commonwealth) Act served as 
more than a model for the Allied Forces Act, 1940, 41 passed, after 
the fall of France, when the forces of the Allies 42 had withdrawn 
to the United Kingdom. The Allied Forces Act authorized the ap- 



ciple to which I am referring, and for that reason the Defence of the Realm 
regulations were passed, though some time after the American troops had 
begun to arrive in this country." 274 H.C. Deb., (5th ser.) 748 (1933). 

At a later stage, when asked specifically whether "any visiting soldier or 
sailor, from whatever place he came, who had committed an offense would 
not be triable," the Solicitor General said : 

"If the hon. Gentleman means that if one soldier or one sailor, staying 
away from the force of which he is a member, committed an offense against 
our laws, he would be triable, certainly; yes; but as long as he is here as 
a member of a visiting force and remains a part of that force, that force 
has exclusive jurisdiction over him." 275 H.C. Deb., (5th ser.) 1121- 
22 (1933). 

40 In a later debate the Home Secretary, Sir David Maxwell Fyfe, re- 
ferred to the Visiting Forces (British Commonwealth) Act and the Allied 
Forces Act, 1940 and said: "These Acts did not make any specific provision 
for what was to happen when a member of a visiting force committed an 
offence which was an offence both against United Kingdom law and his own 
service law, and the question of which court was to exercise jurisdiction 
then was left to be settled by arrangement, much in the same way as in 
the case of offences by members of our own forces in this country which are 
offenses both against military law and against civil law." 505 H.C. Deb. 
(5th ser.) 563 (1952). 

41 3 & 4 Geo. 6, c. 51. 

42 That they "arrived not as fully equipped and perfectly organized units 
ready at once to move into and take control of a zone of operations in which 
they would continue the fighting, but rather as the broken and disorganized 
remnants of armies and air forces which had been seriously defeated," may, 
as Barton suggests, explain the status accorded them by the Allied Forces 
Act, 1940. Barton, op. cit. supra, note 9, at 401. 



128 

plication, by Order in Council, of much of the earlier Act to the 
forces of the Allies, including the provision granting service 
courts immunity from supervisory jurisdiction. The Act spelled 
out expressly the rights of the service courts and authorities of 
the Allied forces to exercise jurisdiction "in the United Kingdom 
or on board any of his Majesty's ships or aircraft" with respect 
to "matters concerning discipline and internal administration." 
Of more importance, it expressly negatived immunity from the 
jurisdiction of the British civil courts for offenses against United 
Kingdom law and went even further to provide that if a person 
tried by a service court was afterwards tried by a civil court, the 
latter court should in according punishment take into account the 
punishment already imposed by the service court. This excluded 
any notion that the principle of non bis in idem was applicable. 43 
The treaty with Czechoslovakia 44 provided : "Article 2. The 
offenses of murder, manslaughter, and rape shall be tried only 
by the criminal courts of the United Kingdom." The suggestion 
has been made that this provision was ineffective, 45 but for 



48 The Attorney General, Sir Donald Somerville, pointed out that this was 
true in the United Kingdom under the Army Act, and served to emphasize 
"the supremacy of the civil jurisdiction over the military." 364 H.C. Deb. 
(5th ser.) 1380-81 (1940). The issue is, however, certainly different where 
both a national and a court of another country are involved. In Rex v. 
Aughet, note 21 supra, the defense of autrefois acquit was in the same cir- 
cumstances recognized. The Court there stated: "The provisions of our 
Army Act with regard to Courts-martial are based upon principles of high 
policy which have in our opinion no application to decisions of Belgian 
Courts-martial held pursuant to the Convention existing between the Allies." 

The Act also provided, in Section 2(3): "A (service) court shall not 
have jurisdiction by virtue of the foregoing section to try any person for 
any act or omission constituting an offense for which he has been acquitted 
or convicted by any such civil Court as aforesaid." As Schwelb points out, 
this is British municipal law only, not binding on an Allied service court 
as such, except in the United Kingdom. Schwelb, "The Jurisdiction over 
the Members of the Allied Forces in Great Britain," Czechoslovak Year 
Book of International Law, 147, 168 (March, 1942). 

M Annex III, British-Czechoslovak Military Treaty of October 25, 1940, 
quoted in Schwelb, id., at 156. Barton states (op. cit. supra, note 20, at 197) 
that the Anglo-Polish Protocol of November 22, 1940; the Agreement with 
the Free French Authority of January 15, 1941; the Anglo-Norwegian 
Agreement of May 28, 1941; the Anglo-Netherlands Agreement of May 5, 
1942, and the Anglo-Belgian Agreement of June 4, 1942 were similar. 

46 Barton states that "It has long been the custom in the United Kingdom 
for the civil courts to have exclusive jurisdiction over these grave offenses," 



129 

present purposes it is significant that the United Kingdom, in 
entering into the treaty, felt justified in reserving not only con- 
current jurisdiction with respect to crimes generally but also ex- 
clusive jurisdiction with respect to the three named offenses. The 
same attitude was taken in the House of Commons. An amend- 
ment to the Allied Forces Act was moved, for which a precedent 
existed in the Australian and New Zealand counterparts of The 
Visiting Forces (British Commonwealth) Act, 46 which would 
have denied the Allied service courts "the power to pass sentence 
of death, except for offenses for which a sentence of death could 
be passed upon a British subject." 47 In the debate on this amend- 
ment, ultimately defeated, the Attorney General made certain 
statements which have been said to show that the British recog- 
nized that international law accorded immunity from local juris- 
diction to visiting armed forces. It seems, however, that at most 
the Attorney General conceded such immunity for offenses com- 
mitted within the camps of the visiting forces. 48 

The status of forces of the British Allies, other than the 
United States, continued to be governed through World War II 
by the Allied Forces Act. The United States was, however, un- 
willing to accept that status for its forces. Parliament on August 
6, 1942 accordingly enacted the United States of America (Visit- 
ing Forces) Act, 1942, 49 in implementation of an agreement 
evidenced by an Exchange of Notes of July 27, 1942. 

The crucial provision of the Act stated: "(1) Subject as here- 
inafter provided no criminal proceedings shall be prosecuted in 
the United Kingdom before any court of the United Kingdom 
against a member of the military or naval forces of the United 
States of America." The Foreign Minister's Note and the debate 
in Parliament make it abundantly clear that His Majesty's 
Government believed it was going well beyond the dictates of 

but that the restriction in the treaty has no counterpart in the municipal 
law of England and hence "there would appear to be no legal procedure for 
resisting the exercise of jurisdiction by an Allied service court over these 
crimes." 1950 Brit. Yb. Int'l. Law 186, 198; and 1949 Brit. Yb. Int'l. Law 
380, 405. 

* 6 Section 12 of the Defence (Visiting Forces) Act, 1939 (Aus.) and 
Section 9 of the Visiting Forces Act, 1939 (N.Z.). 

47 364 H.C. Deb. (5th ser.) 1403 (1940). 

" 364 H.C. Deb. (5th ser.) 1404-06 (1940). 

49 5 & 6 Geo. 6, c. 31. The Exchange of Notes is appended as a Schedule 
to the Act. 



130 

international law in granting immunity from the exercise of 
jurisdiction by the British Court. 50 The Note stated the British 
Government "was prepared * * * to give effect to the desire of 
the Government of the United States'" that its service courts and 
authorities have exclusive jurisdiction. It went on to state that: 
"In view of the very considerable departure which the above ar- 
rangement will involve from the traditional system and practice 
of the United Kingdom there are certain points upon which His 
Majesty's Government consider it indispensable first to reach an 
understanding with the United States Government. ,, B1 



60 The Lord Chancellor in moving the second reading of the Bill in 
the Lords stated that: "Apart from this legislation there can be no 
doubt that in any such case [of an offense against the criminal law] 
there would be jurisdiction in the British Courts." He also remarked 
that "I think your Lordships will see that this is a very interesting and, I 
admit, a most unusual proposal: One which would never be justified or 
tolerated except under conditions of war and except under conditions of the 
closest feeling of comradeship and of common legal traditions. * * *" 124 
H.L. Deb. (5th ser.) 61, 66 (1942). 

"It is a proposal unique in the constitutional history of this country, but 
the Government of the United States have been so ungrudging in the aid 
given to this country that if they express a desire for such legislation no one 
would hesitate to grant it." Lord Atkin in The Times, Aug. 3, 1942. 

"In World War II, in England, we had complete extraterritoriality 
granted by the British Parliament under a very strong urge by the Prime 
Minister, under conditions where Britain, fighting for its life, wanted all the 
troops she could get on the British Isles, and would make almost any sacrifice 
to get them." Gen. Walter Bedell Smith, Under Secretary of State, supra, 
note 8, at 23. 

51 (Emphasis added). The points were (1) that the American authorities 
would assume responsibility for trying and on conviction punishing those who 
were alleged on sufficient evidence to have committed criminal offenses in the 
United Kingdom; (2) that a trial for an offense against a civilian would be 
in open court (subject to security considerations) and would be held promptly 
in the United Kingdom and "within a reasonable distance from the spot where 
the offense was alleged to have been committed" for the convenience of 
witnesses; (3) that no one should be tried for a pre-Pearl Harbor offense; 
(4) that "satisfactory machinery" would be devised for mutual assistance in 
criminal investigations; (5) that the arrangement should operate during the 
war and for six months thereafter and (6) the agreement was "subject to 
the necessary Parliamentary authority." Quite apart from the overtone of 
such phrases as "the very considerable departure * * * from the traditional 
system and practice," the conditions imposed with respect to the time, place 
and the manner of conducting trials and the statement that Parliamentary 
authority was necessary, implied that in the British Government's eyes the 
grant of immunity was not required by international law. 



131 

The Bill was first introduced in the House of Lords — the prac- 
tice with non-controversial Bills — and the House of Commons was 
asked to pass it in a single day. Some Members nevertheless 
found opportunity to voice their misgivings, most interestingly 
in terms of the inconsistency between granting the immunity and 
the traditional subordination of the military to the civil authori- 
ties in the United Kingdom. 

The Note of the Foreign Minister, although it expressly dis- 
claimed any wish to make the grant of immunity from British 
jurisdiction "dependent upon a formal grant of reciprocity" ex- 
pressed the hope that if British forces were stationed in Ameri- 
can territory, the United States would be "ready to take all steps 
in their power to ensure to the British forces concerned a position 
corresponding to that of the American forces in the United King- 
dom. * * *" Almost two years later, on June 30, 1944, the 
Service Courts of Friendly Foreign Forces Act was passed. 52 

The guarded opinion had been expressed that both the Federal 
and State courts of the United States would recognize the im- 
munity of British forces in the United States from the jurisdic- 
tion of the local criminal courts. 53 The Senate Committee on the 
Judiciary and individual Senators in debate on the floor, dis- 



63 Chap. 326, 58 Stat. 643, 22 U.S.C., 701-06. 

68 "Unless the [Federal] court should disregard those opinions [in The 
Schooner Exchange, Coleman v. Tennessee and Dow v. Johnson], it would be 
obliged to hold without regard to the exchange of notes, that British military- 
personnel forming part of an organized force entering the United States 
with the consent of our Government are exempt from the jurisdiction of the 
courts of the United States. 

"A case arising in a State court ought to be decided the same way and 
probably would be if the above decisions were brought to the attention of the 
Court. It is, however, possible that one or more judges of inferior courts 
* * * unskilled in matters of international law might * * * assert their 
jurisdiction * * * and might even convict and sentence * * *. If the De- 
partment of State should make public announcement that, in its view the 
personnel of British armed forces * * * are subject to the jurisdiction of 
their own courts-martials only and exempt from that of the courts of the 
United States and the several States; and the Department of Justice 
should * * * direct the appropriate United States attorney to file a sug- 
gestion * * * that the case * * * is within the exclusive competence of a 
British court-martial, the likelihood of such a conviction would be still 
further diminished even if such a conviction should take place. * * * It 
should be reversed and the sentence set aside by the proper appellate court 
upon such a suggestion * * * and upon the three cases above mentioned 
being cited." King, op. cit. supra, note 9, at 566. 



132 

tinguishing nicely between the several issues raised, indicated 
that (1) they believed the British authorities were entitled under 
international law to exercise jurisdiction over their forces in the 
United States, without implementing American legislation, 54 (2) 



61 Senator Revercomb offered an amendment (90 Cong. Rec. 6496 (1944)) 
reading: "The Service Court of any friendly foreign force * * * is hereby 
authorized to exercise its jurisdiction within the territorial limits of the 
United States during the continuance of the present hostilities, and six 
months thereafter." The debate in the Senate centered around this proposed 
amendment. 

It is not easy to follow Senator Revercomb's argument. He apparently 
felt that, if the British forces in the United States had constituted an 
army — an organized body of troops — they would have been immune from 
American jurisdiction, at least if they had been in passage, and that the 
amendment authorizing the exercise of jurisdiction would then have been 
unnecessary. Since neither condition existed, the amendment was necessary 
or, in any event, desirable, to avoid uncertainty. (Id., at 6497). Senator 
Revercomb's argument based on the obligation to pass legislation reciprocal 
to that passed by Great Britain was weakened because he could point to no 
comparable provision in The United States of America (Visiting Forces) 
Act, 1942. He apparently was not informed that the status of the American 
forces in the United Kingdom was governed directly not only by that Act 
but by The Allied Forces Act, 1940, which contained a provision analogous 
to the amendment he proposed and, indirectly, by The Visiting Forces 
(British Commonwealth) Act. 

Senators Murdock and Connally were clear that the British service courts 
could exercise jurisdiction in the United States without authorization by the 
Congress and that all that was needed was, in Senator Murdock's words, 
"to implement whatever jurisdiction the service courts bring with them." 
(Id., at 6497). 

Senator Connally argued : 

"Mr. President, is not the whole question one of permission to the foreign 
force to be here? We can exclude them if we desire to do so, but does not 
our consent to their being here carry with it * * * that the force may 
exercise its discipline and its control, and punish infractions on the part 
of its members? That being the case, why is it necessary for us specifically 
to provide that they can exercise their jurisdiction here? * * * If we permit 
foreign troops and foreign naval officers and naval organizations to be within 
the United States, the implication and the natural inference is that they can 
exercise their normal functions. The purpose of the Bill is simply to co- 
operate with those functions by permitting, with our consent, of course, 
the summoning of civilian witnesses to attend the session of their service 
court. As I understand it, that has to be done by permission." (Id., at 6497). 

The position taken by Senators Murdock and Connally apparently had the 
support of the State Department, since in a letter to the Judiciary Commit- 
tee Secretary Hull stated he had advised the British Ambassador that: 
"* * * the interested agencies of this Government were of the opinion that 



133 

implementing legislation was necessary to enable American 
officials to arrest and turn over to the British military authorities 
members of the British forces, to provide for summoning 
witnesses not members of those forces and for punishing such 
witnesses for perjury or contempt, for immunity for the members 
of British service courts and witnesses before them, and for im- 
prisonment of convicted offenders in American penal institutions ; 
(3) but they did not believe foreign armed forces were entitled 
to immunity from the jurisdiction of American courts under in- 
ternational law, doubted that Congress could constitutionally 
grant such immunity from the jurisdiction of State courts, and 
were clear that in any event it did not wish to grant such im- 
munity. 55 The statute accordingly dealt only with the second 

British service courts and authorities in the United States have the right 
under our law to exercise jurisdiction over members of their forces. With 
respect to the facilities requested to make such jurisdiction effective, it was 
stated that in the opinion of the interested agencies of the Government addi- 
tional legislation would be necessary to make some of such facilities 
available * * *." Report of the Senate Judiciary Committee, 78th Cong., 2d 
Sess., 2-3 (June 8, 1944) . 

56 Senator Murdock : "I ask the Senator whether he wants to prohibit the 
jurisdiction of the Federal courts and the jurisdiction of the State courts, as 
a parliamentary act prohibits the jurisdiction of the criminal courts in 
England. If he wants to go that far, I think he should tell the Senate. That 
is one of the questions * * * which came before the Committee * * *. By a 
majority vote it was decided, I think rather emphatically, that we did not 
want to prohibit jurisdiction on the part of our courts, but that all we 
wanted to do was to implement whatever jurisdiction the foreign service 
courts brought with them to this country, first, by power of arrest, second, 

by power of dealing with witnesses, and stop there." 

******* 

"By this bill we deny no jurisdiction at all to either the Federal or the 
State courts of this country, * * *. As I understand the Senator from West 
Virginia, he wants to deny criminal jurisdiction to the Federal and State 
courts of this country. The position I take is that it is not necessary to 
go that far, nor did I want to go that far, nor do I think Congress has the 
right to prohibit jurisdiction on the part of the State courts over criminal 
matters." 90 Cong. Rec. 6491, 6492, (1944). 

It is difficult to understand the basis for the statement that "Public Law 
384, 78th Congress (Chapter 326, 2nd Session) * * * assumes the existence 
of this exclusive jurisdiction under international law and implements it. 
That this is the legislative intent is clear from the debate in the 
Senate. * * *" Bathurst, "Jurisdiction over Friendly Foreign Armed Forces: 
The American Law," 1946 Brit. Yb. Int'l. L. 338, 341. See the discussion of 
this statement in Parliament during the debate on the Visiting Forces (Ap- 



134 

category of problems and its operation was made dependent upon 
a Presidential Declaration which could be revoked. 56 

The Senate did believe, however, that the Congress could im- 
pose conditions on the exercise of jurisdiction by a foreign service 
court. The Report of the Senate Committee on the Judiciary ex- 
pressly stated that "[T]he Committee do not concede that any 
foreign military court has more than conditional jurisdiction 
while on our soil" and the Senate adopted an amendment offered 
from the floor relating to the time, place and manner of trial 
where the offense was against a civilian. 57 Apparently, however, 
it was thought unnecessary to protect the foreign service court 
against the supervisory jurisdiction of American courts. There is 
no provision in the Act comparable to that in the British statute. 

The United States had in the meantime been granted exclusive 
jurisdiction over its armed forces by a number of other coun- 
tries. 58 The record, however, plainly negatives any inference that 



plication of Law) Order, 1954, 526 H.C. Deb. (5th ser.) 1280, (1954), 
quoting a letter from Dr. Barton vigorously criticizing the statement. 

See also the comment later made by General Walter Bedell Smith, Under 
Secretary of State, in a letter to Senator Wiley, 99 Cong. Rec. 8776 (1953) : 

"It is the opinion of the Departments of State and Defense, that it is 
neither necessary nor desirable for the United States to seek or have ex- 
clusive jurisdiction by treaty over its forces, civilian components, or their 
dependents in the NATO countries, nor to grant exclusive jurisdiction over 
similar foreign persons with respect to offenses committed within the terri- 
tory of the United States." (Emphasis added.) 

68 Service Courts of Friendly Foreign Forces Act, 22 U.S.C. 702. The re- 
quired proclamation was made as to British and Canadian forces by Proc. 
No. 2626, 9 Fed. Reg. 12403 (1944) and revoked by Proc. No. 3107, 20 Fed. 
Reg. 5805 (1955). 

67 78th Cong., 2d Sess., June 8, 1944. The amendment repeated almost 
verbatim the statement in the Note of the British Foreign Minister. The 
Bill had previously been amended in Committee to require that trial take 
place in the United States. The Committee Report stated that "It is the 
view of the committee that a law-breaking foreigner who has become sub- 
ject to civil arrest for violation of our law should not be removed to his 
homeland or put out of our national jurisdiction for trial." (at 1) 

The Restatement, Foreign Relations Law, Comment b to Section 58, p. 186, 
recognizes the right of a state to impose such conditions. 

68 The U.S. Memorandum lists the following, op. cit. supra, note 2, at 415: 
"Australia — Exclusive jurisdiction unilaterally without any agreement. 

Statutory rules 1942, No. 241— dated May 27, 1942. Notified in the 
Commonwealth Gazette on May 27, 1942. 



135 

these grants were made in recognition of any obligation under 
international law. 

Perhaps the most interesting review of the whole question was 
that of the Supreme Court of Canada in Reference Re Exemption 
of U.S. Forces from Canadian Criminal Law. 59 The status of the 
United States forces in Canada then closely paralleled that of our 
forces in the United Kingdom prior to the passage of the United 
States of America (Visiting Forces) Act, 1942. 60 An Order in 



China — Agreement similar to that with United Kingdom concluded by ex- 
change of notes, on May 21, 1943. 
Egypt — Agreement similar to United Kingdom agreement concluded by 

exchange of notes. Journal Officiel, Cairo, March 2, 1943. 
India — Agreement similar to United Kingdom agreement concluded by ex- 
change of notes. Implemented by Ordinance No. LVII of 1942, Allied 
Forces (United States of America), Ordinance, 1942. Gazette of India 
Extraordinary, October 26, 1942. 
Iraq — Exclusive jurisdiction recognized unilaterally by Law No. 24 for 
1943 — Law for the Extension of the Immunities and Privileges Men- 
tioned in the Treaty of Alliance concluded between Iraq and Great 
Britain to the Forces of the United Nations. Made at Baghdad, March 7, 
1943. Made applicable to American forces in Iraq by regulation No. 
2084, published in Gazette on March 15, 1943. 
Liberia — Exclusive jurisdiction given by Article 2 of the Agreement of 
March 31, 1942, between the United States and Liberia. Department of 
State Bulletin, December 5, 1942. 
New Zealand — Agreement similar to United Kingdom agreement effected 
by exchange of notes. Implemented by Order in Council Serial No. 
1943/56, the United States Forces Emergency Regulations 1943. Dated 
April 7, 1943. Notified in the Gazette: April 8, 1943." 
To these should be added Greenland, by treaty with Denmark, April 9, 
1941, EAS (1941) No. 204, and Iceland, by an agreement of July 1, 1941, 
[1948] 12 U.N.T.S. 405. 
69 [1943] 4 D.L.R. 11. 

60 The status of foreign troops in Canada was governed by the Visiting 
Forces (British Commonwealth) Act, 1932-1933 (Can.) c. 21 and the 
Foreign Forces Order, 1941 (P.C. 2546, 74 Can. Gaz. 4416), the latter com- 
parable to the Armed Forces Act, 1940 of the United Kingdom. The 
Foreign Forces Order, 1941 was made applicable to United States forces by 
an Order of July 27, 1942 (P.C. 6566, 76 Can. Gaz., 717), which was super- 
seded by an Order of April 16, 1943 (P.C. 2813, vol. Ill (1943) C.W.O. & R., 
30) making the Foreign Forces Order, 1941 applicable to United States 
forces except for its proviso denying jurisdiction to a foreign service court 
in cases of murder, manslaughter and rape, etc. 



136 

Council had, however, included a clause saving the claim of the 
United States that its forces were immune from Canadian juris- 
diction. 61 The Governor General referred the question to the 
Supreme Court. The Canadian Attorney General submitted a 
Factum and the United States a Memorandum, both in favor of 
the claimed immunity. The attorneys general of five Canadian 
provinces took the contrary position. Two judges held there was 
no immunity, one that there was a qualified immunity, and two 
that there was a general immunity. Their disagreement was in 
large part with regard to the relative weight to be attached to the 
practice of states as compared to the opinions of the text writers. 

The Chief Justice, in an opinion in which Judge Hudson joined, 
although he referred to The Schooner Exchange* 2 limited his 
comment to a discussion of the British constitutional principle 
that the military are not immune from the jurisdiction of the 
civil courts, and to a review of the British practice and attitudes 
beginning with the Visiting Forces (British Commonwealth) 
Act, 1937, with only passing reference to the World War I 
Anglo-French agreement and Anglo-American negotiations. His 
conclusion was (p. 21) that "[N]o such rule as that now insisted 
upon has ever been a part of the law of England ; and this applies 
equally to Canada." 

Judge Kerwin, in reaching the opposite conclusion, relied on 
the World War I arrangements, 63 the United States of America 
(Visiting Forces) Act, 1942 and the Exchange of Notes which 



81 "2. The application of the Foreign Forces Order, 1941, as aforesaid, to 
the forces of the United States of America shall not be construed as 
prejudicing or curtailing in any respect whatsoever any claim to immunity 
from the operation of the municipal laws of Canada or from the processes 
of Canadian Courts exercising either criminal or civil jurisdiction by mem- 
bers of the forces of the United States of America founded on the consent 
granted by His Majesty's Government in Canada to such forces to be present 
in Canada." Order of April 16, 1943. C.P.C. 2813, Vol. Ill (1943) C.W.O. 
& R., 30. 

"11 U.S. (7Cranchll6) (1812). 

" Judge Kerwin said of the World War I Anglo-American negotiations 
that "In this exchange of notes the United States throughout took the posi- 
tion that members of her forces in Britain were exempt from prosecution in 
the British courts." [1943] 4 D.L.R. 11, 30. But see pp. — , supra. 



137 

preceded it, 64 and the opinions in The Schooner Exchange and 
Chung Chi Chung v. The King. 65 

Judge Taschereau, agreeing with Judge Kerwin, relied pri- 
marily on the opinions of text writers. The Schooner Exchange 
and Chung Chi Chung v. The King. 66 He referred only briefly to 
the World War I experience and dismissed the later practice 
with a sentence. 67 

Judge Rand's approach was that the rules of international law 
on jurisdiction and immunities "lie in practice and principles, 
and each depends on its special circumstances." His conclusion 
was that visiting forces are immune only with respect to offenses 
"committed in their camps and on their warships, except against 
persons not subject to United States service law, or their property, 
or for offences under local law, wherever committed, against other 
members of those forces, their property and the property of their 
Government, but the exemption is only to the extent that United 
States courts exercise jurisdiction over such offences." (p. 51) 

All the judges were agreed, however, that the Government 
could accord immunity to the American troops, and it later did so. 

Shortly after the decision of the Canadian Court, the Supreme 
Court of New South Wales had occasion to review the same ques- 
tion, and in Wright v. Cantrell expressed the conclusion that 
visiting forces enjoyed no general immunity from the local 
criminal jurisdiction under international law, although United 



64 Supra, p. 129. Judge Kerwin quoted (p. 32) from the Foreign Minister's 
note: "In view of the very considerable departure which the above arrange- 
ments would involve from the traditional system and practice of the United 
Kingdom * * *," and observed: "I take it that refers to a departure in the 
sense that foreign troops had not been on the soil of Great Britain for many 
years with the exception of the last great war." This is, it is respectfully 
submitted, a clear misreading of the Foreign Minister's meaning. 

66 [1939] A.C. 160. 

ee «F rom tnj s judgment * * * it flows clearly to my mind that some im- 
munities exist in favour of foreign troops. * * * [T]he essence of the deci- 
sion does not apply only to ships in territorial waters, but applies equally to 
all armed forces." Supra, note 63, at 35. 

67 "I have read with care various agreements which have been entered into 
during the last war * * *. All these agreements tend to show the existence 
of this universally adopted rule of international law. * * *" Id., at 41. 

"* * * I would like to point out that the United States of America 
(Visiting Forces) Act, 1942, enacted by the United Kingdom, differs from 
what I think are the settled and accepted principles of international law in 
relation to immunities." Id., at 43. 



138 

States forces had been accorded such immunity by statutory 
rule. 68 The Mixed Court of Cassation of Egypt, in an opinion dis- 
tinguished for its extensive review of the available precedents, 
had reached the same conclusion, although it recognized a limited 
immunity for offences within camps and on duty. 69 No court of 
comparable status reached the contrary result. 70 

The foregoing review makes it abundantly clear that no rule 
of international law was ever established according visiting armed 



68 [1943-1945] Ann. Dig. 133 (No. 37); [1943] V.L.R. 185; [1943] 
A.L.R. 427. The action was for defamation against a British subject, serving 
in the naval forces of His Majesty. The defendant pleaded that the acts 
complained of were done while he was working for and under the orders of 
the United States armed forces. Jordan, C.J., in an extended opinion, con- 
sidered immunity both from civil and criminal jurisdiction. Referring to the 
British Act and the Australian Regulations according exclusive jurisdiction 
to the United States with respect to criminal offences, he said, at 139-41: 

"It is evident that these provisions do not involve the recognition by 
Great Britain and the Dominions of any such rule of complete immunity as 
has been here contended for, and do not constitute a regulation of the in- 
cidents of such an immunity conceded to be otherwise existing. They are 
expressly stated to be a departure from traditional system and practice. * * * 

"It is clear from the foregoing that the doctrine of complete immunity 
which has been contended for on behalf of the defendant is not only com- 
pletely lacking in what has been described [as] 'the hallmarks of general 
assent and reciprocity', but is also inconsistent with the implication of 

local legislation. 

******* 

"It [international law] must also be deemed to concede to those in com- 
mand of the force all authority necessary to maintain discipline over its 
members, and to agree to refrain from itself interfering in purely dis- 
ciplinary matters, and, in some cases at any rate, in matters which are not 
merely disciplinary, but constitute criminal offences committed by one mem- 
ber of the force against another. This appears to be recognized by the 
decision of the Privy Council in the case of Chung Chi Cheung v. R., 
[1939] A.C. 160 * * *. It is obvious that discipline could not be maintained 
if, when a member of the force had been confined to barracks, a local court 
would entertain an action by him against his superior officer for false im- 
prisonment. * * *" 

The comments of the Chief Justice regarding criminal jurisdiction are, of 
course, dicta. 

69 Manuel v. Ministere Public, [1943-1945] Ann. Dig., 154 (No. 42). The 
status of British troops in Egypt was fixed by the Anglo-Egyptian Treaty 
of August 26, 1936, granting immunity. 

70 But see In re A.F., Tribunal Correctionnel of the Isle of Chios, Greece, 
[1943-1945] Ann. Dig., 163 (No. 43). The British forces in Chios at the 
time may have had the status of a liberating, occupying force. 



139 

forces a general immunity from the jurisdiction of the receiving 
state. The situation is less clear with respect to a limited im- 
munity, with respect to acts taking place in the camps occupied 
by the visiting forces. Many states were not prepared to concede 
even this limited immunity. 

There was never, of course, any doubt that the sending state 
had legislative jurisdiction over its armed forces abroad. Some 
doubt exists, however, that its unqualified right to exercise en- 
forcement jurisdiction was established as a rule of international 
law. Receiving states felt entitled, at least, to regulate and place 
conditions upon such exercise of enforcement jurisdiction. It is, 
on the other hand, abundantly clear that no sending state was 
ever considered as entitled to exercise any jurisdiction over any 
person not a member of, or associated with, its armed forces, 
except in a combat zone. 

The frequent instances in which the allocation of jurisdiction 
was determined by international agreement and implementing 
municipal legislation not only indicates that states did not feel 
compelled to accord a general immunity to visiting armed forces 
but also suggests that the situation is inherently so complex and 
the conflicting interests so evident that international agreements 
and implementing legislation are necessary to a satisfactory ar- 
rangement. 



CHAPTER VII 
THE TREATY ERA 1 

The United States had exclusive jurisdiction over its forces in 
most, though not all, 2 foreign countries in World War II. Our 
allies did not, however, always grant the same immunity to other 
friendly forces stationed in their territories, 3 nor did the United 
States to the forces of its allies stationed in the United States. 4 
Decisions of the Supreme Court of Canada, the Supreme Court 
of New South Wales and the Mixed Court of Cassation of Egypt 5 
supported the view that the grant of exclusive jurisdiction to the 
United States over its forces by its allies was not compelled by 
any rule of international law but was in the nature of a conces- 
sion. Many of our allies emphasized that the grant of exclusive 
jurisdiction was prompted by the circumstance of war and would 



1 There are, in addition to the agreements which will be discussed below, 
classified agreements with certain countries. No reference will be made 
even to their existence, except where this has been made public, and the 
situation will be described as though the agreements did not exist, although 
this necessarily involves giving a distorted picture. 

The significant agreements to which the United States is a party are 
given in abridged form in the Appendix. Where no citation is given for an 
agreement, it may be assumed it can be found in the Appendix. There are 
no status of forces agreements with certain countries, e.g., Panama, Iran, 
Hong Kong, Gibraltar. 

2 The United States did not have exclusive jurisdiction under the Leased 
Bases agreement. 

8 The status of the forces of the United Kingdom's allies, other than the 
United States and the Commonwealth countries, continued to be governed 
throughout World War II by the Allied Forces Act, 1940. See p. 127, supra. 

4 P. 131, supra. 

8 Pages 135-138, supra. Several judges of the High Court of Australia took 
occasion, in their opinions in Chow Hung Ching v. The King, 11 Commw. 
L.R. 449 (Aust. 1948), to indicate their view that visiting foreign forces did 
not enjoy a general immunity; their views differed as to the scope of any 
limited immunity which might exist. The decision denying immunity to the 
defendants was, however, based on the conclusion that they were not in any 
event members of a military force. 



142 

terminate with the end of hostilities. Their attitudes and actions 
in the immediate post-war period showed that they considered 
the distinction between war and peace significant, and were not 
prepared to grant immunity to visiting forces in peacetime. 
Canada in 1947 passed the Visiting Forces (United States of 
America) Act 6 under which visiting foreign forces, including 
those of the United States, did not enjoy immunity from local 
criminal jurisdiction. 7 The United Kingdom, although it did not 
repeal the United States of America (Visiting Forces) Act, 1942, 
until it implemented the NATO Agreement in 1952, repeatedly 
raised the issue of termination of the Act. 8 In the meantime, in 



e ll Geo. v [l],c. 47 (Can.). 

7 Section 4(1) provided that: "Nothing in section three of this Act 
[authorizing United States military authorities to exercise jurisdiction over 
U.S. troops in Canada] shall affect the jurisdiction of any civil court in 
Canada to try a member of a United States force for any act or omission 
constituting an offence against any law in force in Canada whether or not 
proceedings with respect to such act or omission have been instituted by a 
United States service authority or before a United States service court." 
Certain sections of the Criminal Code were, by Section 9(1), made inap- 
plicable to a member of the United States force acting in the course of 
his duty. 

Mr. Claxton, Minister of National Defence, in introducing the bill to im- 
plement the NATO agreement, said that "[W]ithout such legislation in effect 
in this and other countries the forces of Canada and the other North At- 
lantic treaty nations when in another country would have no more rights or 
immunities than tourists. In respect of the laws of the country they were 
visiting they would be in the same position as one traveling on civilian busi- 
ness." H.C. Deb. (Canada), 2nd Session, 1951, Vol. 1, 1061. 

s«* * * [T]he British indicated they would terminate it when the 
hostilities were over and they sent official notes to us at least twice [April 
30, 1948 and June 6, 1950], and several informal communications, that they 
wanted to terminate this wartime situation. 

"They indicated to us that they wanted to terminate this jurisdiction 
which they had given to us entirely as a wartime measure. As a matter of 
fact, they did it with great reluctance and only under conditions in which 
they were in no position to refuse." Mr. Yingling, Department of State, 
Hearings on H.R. 309, Before the House Committee on Foreign Affairs, 84th 
Cong., 1st Sess. 347 (1955). 

The Home Secretary stated in the Commons that "* * * [A]s various hon. 
members have pointed out, the arrangements made in 1942 whereby excep- 
tional privileges of exclusive jurisdiction were conferred on the United 
States, while they might be appropriate in wartime and the aftermath of 
war, are not appropriate for peace-time; and it would be better to substi- 
tute our proposals of concurrent jurisdiction." 505 H.C. Deb. (5th ser.) 1588 
(1952). See also the comment of Mr. Silverman, id., at 1069. 



143 

1948, it entered into an agreement with France which gave 
British forces in France immunity from French jurisdiction only 
for inter se offenses. 9 Some of the Western European countries 
took an even firmer position with respect to the liability of our 
forces to local criminal jurisdiction and in a few instances Ameri- 
can troops were in fact tried in the local courts. 10 The Brussels 



Surprisingly, the Lord Chancellor, Lord Simonds, in moving the second 
reading of the Bill implementing the NATO Agreement in the Lords, quoted 
Oppenheim's views on the status of forces (infra, p. 197) and at least sug- 
gested they reflected "the true position." 177 H.L. Deb. (5th ser.) 453 
(1952). 

9 U.K.T.S., 1948, No. 44. 

"Article 4(1). The United Kingdom military authorities will exercise their 
exclusive jurisdiction in the case of an offence committed by a member of 
the United Kingdom Armed Forces in the following circumstances : 

(a) When the victim of the offence is a member of the United Kingdom 
Armed Forces; or 

(b) When the offence is contrary to United Kingdom military law but not 
to French law. 

In all other cases the French authorities will examine with the greatest 
consideration any request which may be received from the United Kingdom 
authorities, before a French Court has passed sentence, for the transfer of 
the accused before a United Kingdom Military Court." 

10 Many of the post-war agreements have not been published. The situa- 
tion which prevailed before the NATO Agreement was ratified was sum- 
marized in a letter of Acting Secretary of State Smith to Senator Wiley of 
April 22, 1953, Senate Foreign Relations Committee, "NATO Treaties," S. 
Exec. Rep. No. 1, 83rd Cong., 1st Sess. (1953). 

"My dear Senator Wiley: I understand that the question has been 
raised as to the relation of the NATO status treaties with present 
arrangements which we now have governing the criminal jurisdiction of 
our forces abroad. 

I think that the following points are controlling : 

1. As appears on page 28 of the record of the hearings before the 
Committee on Foreign Relations on April 7 and 8, 'With respect to 
criminal jurisdiction, we will have generally better rights under these 
treaties than under the interim arrangements. The sole exception is 
the situation in the United Kingdom* where the NATO formula will 
shortly become applicable in any event. For example, in one case, we 
have an interim arrangement where some of our personnel can be tried 
by our authorities, while the remainder are entirely subject to local law. 
This arrangement is an informal one and lacks legal standing. 

In another case we do not even have exclusive jurisdiction of our 
personnel for offenses committed in performance of official duty. 

In a third case it is agreed that we will have exclusive jurisdiction 
until the NATO status-of -forces treaty becomes effective; should it not 



144 

become effective, we anticipate that this agreement would have to be 
renegotiated. 

In still another case we now have no jurisdiction over offenses of our 
personnel against local law. 

Other arrangements incorporate the terms of the NATO status-of- 
forces agreement. In some cases we have no arrangements whatsoever. 
All of the foregoing arrangements are informal ad hoc interim ar- 
rangements providing a confusing and varying pattern of rights and 
responsibilities. The arrangements have perforce been limited by the 
existing legislation in each country, which in most cases is not as 
favorable as that of the NATO status-of-forces formula. The present 
arrangement therefore lacks operational uniformity as well as legal 
sanction, and does not provide adequate protection of our forces abroad. 
2. Under the present interim arrangements, we have been working 
out our problems solely by reason of the cooperative spirit of the other 
countries and their authorities. It is not easy for the authorities of 
these other governments to cooperate with us in every case, as their 
present legal structure in most cases does not provide for as favorable 
treatment as that established by the treaties. The treaties would clarify, 
codify, and authorize on a firm legal basis the treatment which has been 
extended to us solely as a matter of grace and good will." 
A letter from Secretary of Defense Wilson to Chairman Gordon of the 
House Committee on Foreign Affairs, of July 1, 1957, Hearings on H.R. 
8704, Before House Committee on Foreign Affairs, 85th Cong., 1st Sess. 
3447 (1957), reads in part: 

"Prior to the ratification by the Italian Government of the NATO 
Status of Forces Agreement, we had no status agreement with Italy. 
During this period, the Italian Government felt obliged to take the 
position under its constitution that our troops were entitled to no im- 
munity from the jurisdiction of their courts. It also felt obliged under 
Italian law to maintain that United States courts-martial could not 
constitutionally operate on Italian soil. We do not believe that the 
Italian view on either of these points can be written off as one of their 
national idiosyncrasies." 
See also the statement of General Hickman, Hearings Before a Subcom- 
mittee of the Senate Armed Services Committee, 84th Cong., 1st Sess. 35 
(March 29, 31 and June 21, 1955), that in Italy prior to its ratification of 
the NATO Agreement, jurisdiction was "governed by the Italian legal 
system which precludes foreign courts from exercising jurisdiction within 
Italian territory." 

The French attitude is indicated by the statement of Deputy Under 
Secretary of State Murphy that "in the debates in the French Parliament, 
a good many members of the French Parliament would insist that they would 
rather not have American troops there if they had to concede on the ques- 
tion of jurisdiction." Hearings, H.J. Res. 309, supra, note 8, at 346. 

In Nusselein v. Belgian State, Court of Cassation, 2d Chamber, Feb. 27, 



145 

Treaty Powers made their position clear by entering into a status 
of forces arrangement which provided that " 'Members of a 
foreign force* who commit an offence in the 'receiving State* 
against the laws in force in that State can be prosecuted in the 
courts of the 'receiving State.' " " Even defeated Japan, where 
the United States as an occupying power at first exercised exclu- 
sive jurisdiction over its forces, insisted that the status of the 
United States forces in Japan should be the same as in the NATO 
countries when the NATO Agreement was ratified. 12 

1950, [1950] Int'l L. Rep. 136 (No. 35), it was held that a Belgian court 
had jurisdiction over a Netherlands soldier for crimes committed against the 
safety of the state in Belgium or abroad. 

11 Agreement of December 21, 1949, 22 Dept. State Bull. 449, (March 20, 
1950) Cmd. 7868. There was no exception to the recognition of the jurisdic- 
tion of the receiving state, although it was enjoined to waive its jurisdiction 
in certain instances. 

A statement of the State Department submitted in the Hearings, H.J. 
Res. 309, supra, note 8, at 290, read in part: 

"[T]he Brussels Pact countries had already dealt with this question 
in regard to their forces in the territories of each other before the 
NATO Status of Forces negotiations began. This agreement * * * 
recognized the full jurisdiction of the host state even as to duty offenses, 
providing only for sympathetic consideration of requests for waiver. 
These countries constituted the bulk of the NATO countries and these 
had already shown their willingness to send forces although they 
would be subject to the laws of their allies, and their unwillingness to 
grant immunity from their own laws to the forces of their allies." 
13 The Administrative Agreement with Japan under Article III of the 
Security Treaty, February 28, 1952, 3 UST 3341, TIAS 2492, provided: 

"ARTICLE XVII 
1. Upon the coming into force with respect to the United States of 
the 'Agreement between the Parties to the North Atlantic Treaty re- 
garding the Status of their Forces', signed at London on June 19, 1951, 
the United States will immediately conclude with Japan, at the option 
of Japan, an agreement on criminal jurisdiction similar to the cor- 
responding provisions of that Agreement." 

During the Hearings on H.J. Res 309, supra, note 8, at 324, Congressman 
LeCompte read into the record an editorial from the Des Moines Register 
which said : 

"During the World War II emergency, several countries gave the 
United States temporarily, the right to try United States soldiers 
charged with civilian crimes abroad, but this couldn't last. Higher pay 
and higher living standards are irritating enough without extraterri- 
torial rights in criminal law. 

"Western countries used to insist on such rights in Eastern lands and 
this was a terrific grievance to Japanese, Turkish, and Chinese national 



146 

Several reasons are discernible as to why states which had been 
willing to grant immunity to visiting forces in war-time were 
unwilling to do so in time of peace. A grant for the duration of 

pride until the 'capitulations' and the 'unequal treaties' were at last 
canceled many years ago. The United States can hardly expect that 
kind of special rights on a permanent basis anywhere today." 
Deputy Under Secretary of State Murphy commented (Id., at 325) : 

"What is said in that editorial about capitulations, of course, provides 
the backdrop for the emotional situation that you have in the Japanese 
Parliament, on this very subject, because they did submit to a capitula- 
tory system for a number of years and now their self-assertion is very 
great and any concession of jurisdiction on their part is quite an 
enormous thing. That is why we are gratified that the NATO Status 
of Forces formula is applicable to Japan." 
Again Mr. Murphy said (Id., at 288) : 

"I was acquainted with a great many members of their Diet who want 
our forces there, sincerely want our forces there, and who I think ap- 
preciate the value to Japan of their presence. 

"At the same time, on an emotional issue like this court jurisdictional 
question — and I discussed it with many of them — you have to think of the 
history connected with it, the distinction that is made between the races, 
the fact that capitulations existed in that area. You have a whole 
emotional historical background for this purpose. 

"I am convinced if we today, regardless of the major elements that you 
talk about, and where the line of defense is and where the major in- 
terests of the country should lie, that on an emotional question like this 
one in the Japanese Diet tomorrow we would get less than we have today. 
That is my honest conviction, just based on the observation that I made 
while I was there. 

"I want to make that distinction between the factors that you mention 
of the larger strategic concepts, the appreciation of the population, 
where their major interests lie, and this issue." 

In the Hearing on H.R. 8704 of July 24, 1957, supra, note 10, at 3460-61, 
Mr. Murphy said of the negotiation with Japan : 

"We were faced with the grim determination on the part of the 
Japanese legislative body * * * the impact of their opinion on the 
Government was very clear and very determined. Because they insisted 
that as soon as the NATO status-of-forces formula was accepted by the 
other nations, they could not accept anything less. * * * There was a 
great sensitivity about equality and sovereignty, which was a growing 
body of public opinion, which was reflected in their Diet." 
Japan had asserted jurisdiction over British sailors from the warship 
Belfast for an offence committed on shore (robbing of a taxi driver) in 
June 1952, although the warship had been engaged in action in Korean 
waters until just before her visit to Kobe. Japan v. Smith and Stinner, High 
Court of Osaka (Sixth Criminal Division), Nov. 5, 1952, [1952] Intfl L. Rep. 
221, (No. 47). 



147 

the war was thought of in terms of a short period. The present 
uneasy peace is thought of as likely to last for an indefinite 
period. 13 The need for the presence of foreign troops is as real; 
however, it may not be so obvious and urgent to the general 
public. Military exigency may require that a commander retain 
as complete control over his troops in peace as in war, but the 
argument is seemingly less compelling. Since war could break 
out at any moment, it is possible that the exercise of jurisdiction 
over visiting troops by the receiving state could interfere with 
military operations as much as in war-time. 

Troops in time of war are exposed repeatedly to danger and 
hardship. No one is likely to think of them then as a privileged 
class. In time of peace, danger and hardship lie largely in the 
uncertain future — troops have more leisure, travel facilities are 
more readily available, and they are more likely to mingle with 
the local population. Perhaps for these reasons the people of a 
receiving state are psychologically less prepared to accept what 
they view as an infringement of their state's sovereignty, through 
granting immunity to foreign troops, as they are less prepared to 
accept a curtailment of their own rights and privileges. 14 A 
comparable shift in the attitude toward the appropriate preroga- 
tives and perquisites of a state's own armed forces has occurred 
often enough. The rise of nationalism since World War II has 
accented these tendencies in some areas, and in certain instances 
unhappy memories of extraterritoriality have made their contri- 
bution. Even in the United Kingdom, sensitivity regarding the 
proper recognition of its sovereign equality has been a larger 
factor than might have been anticipated. 15 



18 "[T] his is the first time that we have ever really envisaged a state of 
affairs in which visiting forces in large numbers would spend an indefinite 
period on British soil in what is technically a time of peace. * * * That 
makes a great deal of difference." Viscount Bridgeman, 177 H.L. Deb. (5th 
ser.) 471, (1952). 

14 "Recently nations have found it necessary to their security to permit 
foreign armies to remain in their territory for indefinite periods. Under 
these circumstances the receiving state is naturally concerned with the 
protection of its citizens and, except in unusual circumstances, will be 
reluctant to waive, expressly or impliedly, the right to assert jurisdiction 
over offenses against local law in matters affecting them." Draft Restate- 
ment, Foreign Relations, Sec. 44, Comment a at 137 (Tent. Draft No. 
2,1958). 

16 Perhaps half the debate in Parliament on the Bill implementing the 



148 

After World War II, the United States withdrew from its posi- 
tion that its troops abroad were in all circumstances entitled to 
immunity under international law, 16 and turned to the negotia- 
tion of status of forces treaties. 17 What may be called the treaty 



NATO Agreement related to ensuring that the United States granted 
reciprocal treatment to British forces stationed in the United States. All 
concerned agreed that reciprocity was essential although all understood that 
no significant number of British troops were likely to be stationed in the 
United States. 

16 The Restatement, Foreign Relations Law, Section 60, p. 189, states : 
"Except as provided in Sees. 61 and 62, a state's consenting to the presence 
of a foreign force within its territory does not of itself imply that the state 
waives its right to exercise enforcement jurisdiction over members of the 
force for violations of the criminal law of the territorial state." 

Comment a to Section 60 states in part that "The concern of the terri- 
torial state with the protection of persons and property normally precludes 
the implication of such a waiver. Exceptions to the rule stated in this Sec- 
tion arise only when the exercise of local jurisdiction would be inconsistent 
with the reason for granting entry to the force or would prevent effective 
prosecution of its mission." 

The Reporters' Note to Section 60, p. 191, distinguishes The Schooner Ex- 
change, 11 U.S. (7 Cranch) 116 (1812) as concerning troops in passage, 
and cites the opinion of the Supreme Court in Wilson v. Girard, 354 U.S. 524 
(1956) as well as the British attitude in World War II. 

17 It nevertheless gave ground only grudgingly. In the NATO negotiations 
the United States Representative noted that the Article on criminal jurisdic- 
tion "was based on the principle that the jurisdiction of the receiving State 
applied to 'foreign forces and civilian personnel, hereafter described by the 
term 'contingents.' This principle, on which the United States Draft was 
based, differed from International Law which provided that, in the absence 
of any special agreement, the sending State retained the right of jurisdiction 
over its forces stationed outside the national territory. The International 
Law on the subject was largely inspired by the decision of Chief Justice 
Marshall in the case of The Schooner Exchange v. McFadden, 11 U.S. (7 
Cranch) 116 (1812)." MS-R (51) 4. A discussion in the Juridical Sub- 
committee indicates the Netherlands representative agreed with this view, 
but the Belgian and Italian representatives did not. MS-(J)-R (51) 2. 

The NATO Agreement was negotiated by a Working Group, assisted by a 
Juridical Subcommittee, and referred for approval to the NATO Council 
Deputies. The available materials on the deliberations of the Working Group 
consist of the Summary Record of their meetings, MS-R (51) 1-26 and 
Documents, MS-D (51) 1-34; those on the work of the Juridical Subcom- 
mittee consist of the Summary Record of their meetings, MS-(J)-R (51) 



149 

era has not, however, been characterized by an abandonment of 
efforts to secure the maximum protection for American troops 
abroad. Nor has it meant ignoring the established bases for de- 
termining jurisdiction. These have continued to shape the at- 
titudes of treaty negotiators, and have in a sense marked out 
the permissible limits of negotiation. It has been recognized, 
however, that the invocation of such abstract ideas as the terri- 
torial principle provides no clear and acceptable answer to many 
practical problems. The circumstances in which troops are sta- 
tioned abroad are too varied, and the interests of the sending and 
receiving states too complex. Treaties have made possible more 
subtle differentiations in the allocation of jurisdiction, taking ac- 
count of the multiple interests of sending and receiving states 
and the complex and differing scales through which they must be 
equated. Perhaps not all the treaty arrangements represent the 
optimum allocation of jurisdiction, but experience suggests that 
on the whole they have created a more workable pattern. Inter- 
national frictions have been reduced — no system has been devised 
which could eliminate them altogether. 

The NATO Agreement is the most important of the post-war 
treaties. Perhaps the majority of our forces abroad are governed 
by its provisions, if one takes into account the arrangements with 
Japan and Iceland which are virtually identical. The Agreement 
with West Germany incorporates its provisions. Moreover, it has 
become the bench mark from which all status of forces arrange- 
ments are measured. The United States Senate has made it clear 
it will approve no arrangement which gives American troops a 
status inferior to that given them by the NATO Agreement. On 
the other hand, states outside NATO have not uncommonly asked 
for no less jurisdiction than the NATO Agreement gives a re- 
ceiving state, in effect taking what may be termed a most-favored- 
nation approach. There are, however, agreements with non- 
NATO countries which reflect certain local circumstances and 
give the United States exclusive jurisdiction over its own forces. 



1-6. Professor Joseph M. Snee, S.J., was kind enough to make copies of 
these materials available to the writer. 

For the actions of the Council Deputies, references in that most valuable 
source, Snee & Pye, Status of Forces Agreements and Criminal Jurisdic- 
tion (1957) have been used. 

It should be borne in mind always that the above materials are reporters* 
summaries, not verbatim transcripts of the proceedings. 



150 

Agreements for Exclusive Jurisdiction 

A multipartite Convention between the United States, the 
United Kingdom, France and West Germany of 1952, as amended 
in 1954 governed the status of American forces in West Germany 
until July 1, 1963, when the present Agreement became effective. 
The Convention stated: "(1) Except as otherwise provided in the 
present Convention, the authorities of the Forces shall ex- 
ercise exclusive criminal jurisdiction over members of the 
Forces * * *." 18 An Exchange of Notes of July 12, 1950 (the in- 
vasion of South Korea began June 25, 1950), which gives exclu- 
sive jurisdiction over members of the United States Military 
Establishment in Korea to courts-martial of the United States, is 
still in effect. 19 The Ethiopian Agreement of May 22, 1953 which 
gives the United States the right to occupy and use certain mili- 
tary facilities and installations in Ethiopia likewise gives the 
United States exclusive jurisdiction over its forces. 20 In the 



18 Article 6, par. 2, provided : "Where under the law of the Power con- 
cerned, the service tribunals are not competent to exercise criminal jurisdic- 
tion over a member of the Forces, the German courts and authorities may 
exercise criminal jurisdiction over him in respect of an offense under German 
law committed against German interests" on certain conditions. [1955] 4 
UST 4288, TIAS No. 3425. 

19 The Exchange of Notes does not cover the United States Military Advi- 
sory Group to Korea. The Agreement to establish the Military Advisory 
Group, January 26, 1950, 2 UST 2696, TIAS No. 2436, 178 U.N.T.S. 102, 
provides in Article IV that "The Group and its dependents will be con- 
sidered as a part of the Embassy of the United States in the Republic of 
Korea for the purposes of enjoying the privileges and immunities accorded 
to the Embassy and its personnel of comparable rank." 

An earlier Agreement of August 24, 1948, [1951] 79 U.N.T.S. 62, had 
provided that "the Commanding General, United States Armed Forces in 
Korea, shall retain exclusive jurisdiction over the personnel of his command, 
both military and civilian, including their dependents, whose conduct as 
individuals shall be in keeping with the pertinent laws of the Republic of 
Korea." 

The New York Times, June 23, 1962, p. 2, reported that the United States 
had agreed to negotiate a status of forces agreement with South Korea. 
"Such an agreement would give Korea jurisdiction over the American troops 
for crimes committed while off duty." 

20 The Agreement (Art. XVII, Part 1) provides simply that: "* * * 3. 
Members of the United States forces shall be immune from the criminal 
jurisdiction of Ethiopian courts. * * *" An Agreement of December 19, 1944, 
93 U.N.T.S. 320, between the United Kingdom and Ethiopia gave the 
United Kingdom exclusive jurisdiction over its forces. See par. 5 of the 
Annexure to Article VI. 



151 

Agreement with Denmark for the Defense of Greenland provi- 
sion is made that: "The Government of the United States of 
America shall have the right to exercise exclusive jurisdiction 
over those defense areas in Greenland for which it is responsible 
under Article II (3), and over any offenses which may be com- 
mitted in Greenland by the aforesaid military or civilian person- 
nel or by members of their families, as well as by other persons 
within such defense areas except Danish nationals, * * *" 21 To 
these agreements one should add the many Mutual Defense and 
Military Aid agreements to which the United States is a party. 
Although these agreements differ in detail, in general they recog- 
nize the exclusive jurisdiction of the United States over the per- 
sonnel assigned to implement the agreements. Normally this is 
accomplished by assimilating such personnel to members of the 
diplomatic mission. 22 

Finally, there are those agreements which differentiate be- 
tween war and peace. The negotiators of the NATO Agreement 
discussed at several sessions whether the Agreement should be 
drafted to govern in time of war. 23 They were in accord that the 



21 Article VIII. The World War II Agreement of April 9, 1941, E.A.S. No. 
204, 35 A.J.I.L. (Supp.) 129 (1941) provided in Article VI that: "* * * the 
Government of the United States of America shall have exclusive jurisdic- 
tion over any such defense area in Greenland and over military and 
civilian personnel of the United States, and their families, as well as over 
all other persons within such areas except Danish citizens and native 
Greenlanders * * *." 

" "In Yugoslavia, Spain, Greece, Ethiopia, and Thailand, military as- 
sistance advisory group personnel enjoy full diplomatic immunity. In Iran, 
Iraq, Turkey, and Saudi Arabia they are subject to the concurrent jurisdic- 
tion of the United States and local courts. 

"In the Philippines, senior officers enjoy full diplomatic immunities, while 
others are subject to jurisdiction of Philippine courts to the extent that 
other members of our forces stationed therein are subject thereto. 

"In the Netherlands, Great Britain, Luxembourg, Norway, Belgium, 
France, Korea, Japan, Pakistan, Formosa, Brazil, Indonesia, Indochina, 
Colombia, Cuba, Denmark, Portugal, Chile, and Italy, their status is that of 
personnel of corresponding rank of the United States diplomatic mission." 
Deputy Under Secretary of State Robert Murphy, Hearings, H.J. Res. 309, 
supra, note 8, at 304. 

See part 3 of the Reporters' Note to Section 65 of the Restatement, 
Foreign Relations Law, p. 209, for a discussion of the status of military 
advisory and assistance groups. 

"The original United States Draft, as explained by the United States 
Representative, "provided that in time of war the sending State shall exer- 



152 

arrangements as to criminal jurisdiction on which these discus- 
sions centered were appropriate only for a time of peace. 24 The 
effort to formulate correlative arrangements to govern in time of 
war was finally abandoned. Rather the Agreement provides for 
review and modification by bilateral agreement of the parties 
concerned, reinforced by the right of any party to suspend any 
provision on sixty days' notice, in the event of hostilities. 25 The 
United States gave explicit notice that it would, in time of war, 



cise sole jurisdiction in the case of offences committed by the members of its 
'contingents'. This had a purely practical purpose: in time of war, it would 
be inadvisable that members of the force or assimilated personnel should be 
withdrawn from the control of their military authorities by reason of their 
subjection to the jurisdiction of the receiving State. The assumption of para- 
graph 10 did not appear in the Brussels Agreement, since the latter did not 
provide for time of war." MS-R (51) 4. 

The United States later put forward a proposal that the Agreement should 
provide that "* * * in time of hostilities * * * the sending State shall have 
* * * the primary right to exercise criminal jurisdiction over members of its 
forces committing any offence within a receiving State except a security 
offense * * * committed against the receiving State." MS-D (51) 2. The 
United States later withdrew this proposal "as the whole question of condi- 
tions in war-time were being dealt with separately." MS-(J)-R (51) 5. See 
also MS-(J)-R (41) 9; MS-D (51) 11; MS-D (51) 11 (Revise); MS-D 
(51) 11 (2nd Revise); MS-R (51) 6; MS-R (51) 20. 

2 * The French representative, in the course of a general discussion in the 
Juridical Subcommittee of the appropriateness of the proposed jurisdictional 
arrangements for war-time, observed "he thought that only Articles VII [on 
criminal jurisdiction] and VIII, and possibly III in so far as it referred to 
immigration regulations, might have to be withdrawn." 

""ARTICLE XV 

1. Subject to paragraph 2 of this Article, this Agreement shall remain in 
force in the event of hostilities to which the North Atlantic Treaty applies, 
except that the provisions for settling claims in paragraphs 2 and 5 of 
Article VIII shall not apply to war damage, and that the provisions of the 
Agreement, and, in particular of Articles III and VII, shall immediately be 
reviewed by the Contracting Parties concerned, who may agree to such 
modifications as they may consider desirable regarding the application of 
the Agreement between them. 

2. In the event of such hostilities, each of the Contracting Parties shall 
have the right, by giving 60 days' notice to the other Contracting Parties to 
suspend the application of any of the provisions of this Agreement so far as 
it is concerned. If this right is exercised, the Contracting Parties shall im- 
mediately consult with a view to agreeing on suitable provisions to replace 
the provisions suspended." 



153 

insist on exclusive jurisdiction over its armed forces. 26 Other 
agreements similarly provide expressly for a shift in the arrange- 
ment regarding criminal jurisdiction in the event of war, to give 
the United States exclusive jurisdiction over its forces. 27 

It may seem odd to group together agreements so diverse as 
those just reviewed, simply because they provide for or con- 
template the possibility of exclusive jurisdiction in the United 
States as the sending state. The significant point, however, is 
the very diversity of the situations covered by these agreements. 
They demonstrate that there is no real norm with respect to the 
status of forces problem. Specifically, they show that there are a 
variety of situations in which exclusive jurisdiction in the sending 
state is or may be appropriate. The Convention with West 



2« «The United States Representative further recalled that in time of war 
the United States Government considered that those provisions relating to 
jurisdiction over its forces which were included in the Agreement, would no 
longer be adequate. In the event of hostilities, the United States Government 
desired to be able to exercise exclusive jurisdiction over their forces. He 
realized that under Article XV the United States Government had the right 
to denounce the Agreement in so far as the provisions in question were 
concerned." MS-R (51) 20. See also note 23, supra. 

27 The Agreement of March 14, 1947 with the Philippines, provides (Article 
XIII, 6) that "Notwithstanding the foregoing provisions, it is mutually 
agreed that in time of war the United States shall have the right to exercise 
exclusive jurisdiction over all offences which may be committed by members 
of the armed forces of the United States in the Philippines." 

The revised Leased Bases Agreement with the United Kingdom spells out 
in detail the allocation of jurisdiction in war and in peace. 

The criminal jurisdiction provisions of the Bahama Islands Agreement so 
closely parallel those of the revised Leased Bases Agreement that here as 
elsewhere references to the provisions of the revised Leased Bases Agree- 
ment may be considered as references to the Bahama Islands Agreement 
as well. 

The Agreement with the Federation of the West Indies does not, on the 
other hand, call for any change in the agreed arrangements in the event 
of war. 

The Agreement with the Dominican Republic provided in Art. XV (1) (a) 
that "Except as provided in subparagraph (b), the Government of the 
United States of America shall have the right to exercise exclusive criminal 
jurisdiction over any offenses committed in the Dominican Republic by: (i) 
Members of the United States Forces; (ii) Other persons subject to the 
United States military law except Dominican nationals or local aliens." 
Subparagraph (b) provided that "During a period of hostilities in which 
either government is engaged the principle stated in subparagraph (a) 
shall apply." 



154 

Germany was explicable as an interim arrangement for the 
period succeeding occupation. The Agreement regarding Green- 
land is plainly the product of the physical environment. Mili- 
tary personnel assigned to missions under Mutual Assistance 
Agreements do not constitute a military force, but serve in an 
advisory capacity. This makes their assimilation to the personnel 
of an embassy not unreasonable. The Agreement with Korea re- 
flects the fact that, given the military build-up in North Korea, 
American troops in South Korea are necessarily maintained on 
a combat basis. Also, South Korea has relatively recently been 
ravaged by war, and this means that its social and governmental 
institutions, including its courts, were disorganized; there is also 
the continuing danger of Communist infiltration. Finally, there 
are many reasons for differentiating a war-time and peace-time 
situation, although the difference does not necessarily imply that 
a sending state should have exclusive jurisdiction in time of 
war. 28 

The NATO Agreement 

At the time the NATO Agreement was negotiated, Western 
Europe presented a quite different situation, for reasons which 
have no relation to the inherent capacity of a people to establish 
and maintain a just system of criminal law. The military threat 
was not so acute as in Korea, and there had been time since the 
end of World War II to reconstitute and revitalize the courts. The 
threat of Communist infiltration, while real enough, could ap- 
parently be effectively controlled. The number of visiting forces — 
particularly American forces — to be stationed in some of the 
Western European countries was expected to be large, much larger 
than in, say, Ethiopia. It was anticipated that they would be 
stationed in many different places in a single country, in circum- 
stances which made likely much intermingling with the local 
population. Language barriers, although they existed, could be 
surmounted with relative ease. The legal systems of the several 
countries differed among each other and from that of the United 
States, but had enough common roots to make their major con- 
cepts familiar or at least readily understandable. 



28 The Agreement with Lebanon of August 6, 1958 provided, with respect 
to the status of the American forces then in the Lebanon, that "The mili- 
tary authorities of the United States shall have the exclusive right to 
exercise all criminal and disciplinary jurisdiction over all persons subject to 
its military law." 



155 

The Brussels Treaty Powers had shown their conviction that, 
in the conditions prevailing in Western Europe, the territorial 
principle should control, and visiting forces should enjoy no 
blanket immunity. The NATO Agreement reflects a modification 
of this attitude, but the territorial principle remains the norm. 
The Agreement, in keeping with that principle, for practical 
purposes gives the receiving state primary jurisdiction, and the 
sending state only secondary, subordinate jurisdiction over all 
offenses except those arising out of acts in the performance of 
duty and offenses in which both the offender and the victim are 
members of or accompany the armed forces. With respect to the 
excepted offenses, the sending state has primary jurisdiction. 

It will be recalled that, in general, international law establishes 
no rules of priority where two or more states have concurrent 
jurisdiction over the same offense. The useful, conflict-resolving 
concept of "primary jurisdiction'' and "secondary jurisdiction" 
is, in the status of forces area, a creation of treaties. It ap- 
parently first appeared in the Agreement of March 27, 1941, re- 
lating to the Leased Bases, and reached full flower in the NATO 
Agreement. Broadly speaking, however, the concept of primary 
and secondary jurisdiction is not new. It is involved somewhat in 
extradition treaties in those instances where a state may be re- 
quested to surrender one of its own nationals to the state where 
the offense occurred, even though the requested state could other- 
wise try this individual under its own laws. The same is true 
where an offense occurs on a merchant vessel in a foreign port. 
On the basis at least of comity the primary right to exercise 
jurisdiction is accorded the littoral state or the flag state, depend- 
ing on such factors as whether the peace of the port was dis- 
turbed. The state of which the offending seaman is a national is, 
moreover, normally prepared to recognize the prior right of either 
the littoral or the flag state to exercise jurisdiction. Every im- 
munity, moreover, can be said to involve no more than the 
recognition of a primary right to exercise jurisdiction, since an 
immunity can always be waived. 

Formerly, in the status of forces area, either the sending state 
(or on occasion the receiving state, e.g., the United Kingdom, 
under the Allied Forces Act, 1940, with respect to murder, man- 
slaughter and rape) successfully claimed exclusive jurisdiction; 
or, where the concurrent jurisdiction of the sending and receiving 
state was recognized, each case was a matter for separate negotia- 



156 

tion. Physical custody of the accused was presumably the most 
important factor. Thus, in Great Britain, neither the Visiting 
Forces (British Commonwealth) Act, 1933, nor the Allied Forces 
Act (1940) except with regard to the offenses mentioned above, 
made any provision for resolving the conflict inherent in the 
recognition of concurrent jurisdiction in the sending and re- 
ceiving states. The use of the concept of primary and secondary 
jurisdiction to resolve such conflicts in advance represents a 
notable forward step. 

The NATO Agreement also accords jurisdiction to the sending 
state — necessarily exclusive — over offenses solely punishable by 
the law of the sending state. This is significant largely with re- 
spect to security offenses and purely military offenses, e.g., 
AWOL. Since the receiving state could not exercise jurisdiction 
in these cases, the grant is not of immunity but simply of the 
right to exercise jurisdiction. The inclusion of the provision was 
probably unnecessary. 

To summarize briefly, our allies have, since the end of World 
War II, made it clear they neither agreed that any rule of in- 
ternational law required they accord a sending state exclusive 
jurisdiction over its forces, nor believed that granting such ex- 
clusive jurisdiction was, except in special circumstances, ap- 
propriate at least in time of peace. The United States has ac- 
cordingly obtained by negotiated agreements a qualified status 
for its armed forces. 



CHAPTER Vni 

CLASSES OF PERSONS COVERED BY 
STATUS OF FORCES AGREEMENTS 

Prior to the treaty era, sending states were prone to claim 
blanket immunity for their troops, and receiving states to claim 
complete jurisdiction over them. The treaty era has been charac- 
terized by more qualified claims, giving rise to allocations of 
jurisdiction recognizing the legitimate interests of both sending 
and receiving states. The status of the accused, in terms of his 
relationship to both the sending and receiving states has, in this 
connection, come under closer scrutiny. Every relationship to 
the sending state's armed forces is not of itself enough to affect 
jurisdiction. 

Delimiting the categories of individuals who should be covered 
by the NATO Agreement gave rise to one of the major con- 
troversies in the NATO negotiations. The solutions reached in 
the NATO Agreement, as well as in other status of forces agree- 
ments, were predicated on the assumption that American courts- 
martial could constitutionally try civilian employees of the armed 
forces and dependents. 1 Those solutions will be analyzed initially 
without reference to the later decisions 2 of the Supreme Court 
denying such jurisdiction to American courts-martial in peace- 
time. The analysis indicates that some civilian employees and, 
particularly, dependents were commonly not included among 
those, jurisdiction over whom was qualified by the treaty. This 
suggests that the impact of the Supreme Court decisions was 
somewhat less than many have assumed, although the appraisal 
should take into account that many receiving states were pre- 
pared, prior to the Supreme Court decisions, to waive their juris- 
diction over civilian employees and dependents in many instances. 



1 Madson v. Kinsella, 343 U.S. 341 (1952) . 

*Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. Singleton, 361 U.S. 234 
(1960); Gresham v. Hagen, 361 U.S. 278 (1960); McElroy v. Guagliardo 
and Wilson v. Bohlander, 361 U.S. 281 (1960). 



158 

MEMBERS OF THE ARMED FORCES 

There was no significant difference of opinion among the NATO 
negotiators regarding the appropriateness of granting the agreed 
range of immunities to all members of the armed forces. 3 There 
was substantial agreement that the relationship between a state 
and a member of its armed forces was the paramount relation- 
ship. Nationality, even in the receiving state, should not affect 
the status of members of a visiting force. 4 This is also true under 



8 It seems clear enough that the NATO agreement does not modify the 
rule of international law regarding the status of the crews of warships in 
the territorial waters and ports of another state when on board. It is true 
that the Agreement uses the phrases "when in the territory," "within the 
territory" and the like, e.g., in Article I 1 (a), denning "force" as "the 
personnel belonging to the land, sea or air armed forces of one Contracting 
Party when in the territory of another Contracting Party," and it could be 
said that "territory" includes territorial waters and ports. See Canard v. 
Mellon, 262 U.S. 100 (1923). It seems implicit in Article VII as a whole, 
however, that it was intended to apply only to armed forces on land, and 
such phrases as that in the Preamble, "Considering that the forces of one 
Party may be sent, by arrangement, to serve in the territory of another 
Party," point to the same conclusion. Apparently the point was never raised 
in the negotiations; it seems inconceivable that if the negotiators had in- 
tended to change the well-established rule regarding the crews of warships, 
they would have done so without discussion. 

It is equally clear that the status of crews of warships on shore is 
governed by the Agreement. 

* Apparently only the Portuguese Representative felt that nationality in 
the receiving state should prevail over membership in the visiting force. "He 
pointed out that under the present text, nationals of the receiving State 
who were members of a foreign force present in the territory of the receiv- 
ing State, could escape by this means from the application of the laws of 
their country. He thought it would be unfortunate if there were any 
difference of treatment between a Portuguese soldier, for example, who was 
a member of the Portuguese army, and a Portuguese soldier who was a 
member of a United States force present in Portugal. The same restriction 
should be adopted for the members of a force or for those of a civilian 
component." 

The Chairman answered, in part, that "it might be dangerous in certain 
cases, under Articles VII [on criminal jurisdiction] and VIII, for example, 
to withdraw the privileges given * * * from nationals who were members of 
a force." MS-R (51) 13. See also MS (D) 51-16. 

The soundness of the NATO solution is evident when, as under the NATO 
Agreement, members of the visiting force enjoy only a qualified immunity, 
for inter se offenses and offenses committed in the performance of duty. It 
is less evident, though on balance still defensible, when the immunity of the 
members of the visiting force extends to private acts which are not inter se 



159 

other recent agreements, with some exceptions. 5 The NATO ap- 
proach is consistent with prior practice 6 and with prevailing 
attitudes with respect to the crews of merchant vessels as well as 

offenses. Then to disregard nationality means that one who, while in the 
pursuit of his private interests, commits an offense in the state of which he 
is a national against a fellow national, is immune from that state's 
jurisdiction. 

5 The Convention with West Germany provided : "The definition 'members 
of the Forces' shall include Germans only if they enlisted or were inducted 
into, or were employed by, the armed Forces of the Power concerned in the 
territory of that Power and at that time either had their permanent place 
of residence there or had been resident there at least a year." 

The Protocol of Signature to the Agreement with West Germany takes a 
different approach, providing in the Agreed Minutes Re Article I that "Ex- 
cept in cases of military exigency, the Governments of the sending States 
will make every effort not to station in territory of the Federal Republic as 
members of a force persons who are solely Germans." 

Under the Leased Bases Agreement the United States was accorded pri- 
mary jurisdiction (Art. IV (1) (C)) in cases in which "A person other than 
a British subject shall be charged with having committed an offence of any 
other nature within a leased area. * * *" Under the Agreement the "person" 
could be a member of the United States armed forces, so that in this instance 
the status of a member of such forces did vary from the norm if he was a 
British subject. Under the revised Leased Bases Agreement, however, 
"British Subject" is defined so as to exclude "a member of a United States 
force" (Art. IV, para. (9)), and nationality no longer affects the status of 
American troops. 

The definitions of the term "United States Forces" in both the United 
States-Ethiopian Agreement and the United States-Libya Agreement are so 
phrased as to leave some doubt whether nationality affects the status of a 
member of the force. The problem is not likely to arise in either country. 
Under the Philippines Agreement, on the other hand — and there the matter 
is of practical importance — the possibility that nationality could affect the 
status of a member of the United States force is expressly negatived in 
the crucial case. The Agreement gives the United States jurisdiction over 
"Any offense committed by any person within any base except where the 
offender and offended parties are both Philippine citizens (not members of 
the armed forces of the United States on active duty) * * *." 

6 See Note 14, infra. None of the agreements there cited excepts from the 
members of a force nonnationals of the sending state, including nationals 
of the receiving state. The Anglo-French treaty of Dec. 15, 1915 {supra, p. 
116) referred to "persons belonging to these Armies * * * of whatever 
nationality the accused may be," and the Franco- American notes of January 
3 and January 14, 1918 {supra, p. 116) to "persons subject to the jurisdiction 
of those forces whatever be * * * the nationality of the accused," a phrase 
which was repeated in both drafts of the proposed World War I Anglo- 
American Agreement {supra, p. 122, n. 30). 



160 

warships, although as to diplomats the trend is to the contrary. 7 
The NATO Agreement also resolved, on the whole in favor of 
the sending state, several lesser issues which had caused diffi- 
culty in the past. It had been asserted that any immunity which 
visiting forces might enjoy under international law was accorded 
to them only as members of a unit. Therefore, it was said, a 
member of an armed force was not entitled to immunity in a 
country other than that in which his unit was stationed, even 
though he was there on duty. The same attitude was expressed 
in the course of the NATO negotiations. 8 The Agreement never- 
theless clearly accords the agreed immunities to such detached 
members of a force, as well as to those on leave or even AWOL 
in the state in which their unit is stationed ; they are in the state 
"in connexion with their official duties." 9 Those on leave or 
AWOL in a member state in which no unit of their force is sta- 
tioned are as clearly not entitled to immunity. 10 Technically, the 
same is true regarding those on leave in a state in which units of 
their force, but not their unit, are stationed. In practice, how- 
ever, they are accorded the agreed immunities. 11 



7 Article 38 of the Vienna Convention on Diplomatic Relations, signed April 
18, 1961, provides: "1. Except insofar as additional privileges and immuni- 
ties may be granted by the receiving State, a diplomatic agent who is a 
national of or permanently resident in that State shall enjoy only immunity 
from jurisdiction, and inviolability, in respect of official acts performed in 
the exercise of his functions." Paragraph 2 of Article 38 limits the immuni- 
ties of other members of the staff and servants to those "admitted by the 
receiving State." See also Articles 8 and 37 of the Convention, and Section 
77 of the Restatement, Foreign Relations Law, p. 255. 

For earlier views, see Hall, p. 229, footnote, and Preuss, "Capacity for 
Legation and the Theoretical Basis of Diplomatic Immunities," 10 N.Y.U.L. 
Rev. 170, 176 (1932). 

8 MS-R (51) 13. Comment a to Section 54 of the Restatement, Foreign 
Relations Law, p. 182, states that "Detached military personnel on recrea- 
tional status or on individual assignment are not within the meaning of the 
term 'force.' " 

9 "The Working Group recognized that the Article should be so amended 
as * * * not to exclude the case of members of a force on leave in the same 
State in which their force was present." MS-R (51) 13. 

10 The words "in connexion with their official duties" were inserted to meet 
the objection of the Danish and Norwegian representatives who felt "that 
members of a force who might be present in Denmark on leave, for example, 
could hardly be covered by the Agreement." MS-R (51) 13. 

11 Snee and Pye, Status of Forces Agreements and Criminal Jurisdiction 
13 (1957). The Agreement between the Federal Republic of Germany and 



161 

The practical consequences of including those on temporary 
duty or, in some circumstances, on leave among those covered by 
a treaty should be kept in mind in considering whether according 
that status is justified. Under the NATO Agreement it can mean 
primary jurisdiction in the sending state only for offenses in the 
performance of duty and inter se offenses. For those on leave or 
AWOL, it can normally mean only immunity for inter se offenses. 
Not all the earlier treaties dealt with temporary duty and leave 
situations in the same way as the NATO Agreement does, 12 nor 
do all the post- World War II treaties. 13 



the United States of America on the Status of Persons on Leave, signed the 
same day as the Agreement with West Germany, specifically accords the 
standard immunities to members of the armed forces and civilian employees 
stationed in Europe or North Africa and their dependents when on leave in 
West Germany. 

12 The Anglo-French Declaration of Dec. 15, 1915 (supra, p. 116) used the 
phrase "persons belonging to these Armies in whatever territory and of 
whatever nationality the accused may be." The American agreements with 
France (supra, p. 116, n. 13) and Belgium (supra, p. 117, n. 14) read: "per- 
sons subject to the jurisdiction of those forces whatever the territory in which 
they operate or the nationality of the accused," as did the Draft Agreement 
proposed by the British and the United States governments (supra, p. 122, 
n. 30). Either phrase, read literally, seems broad enough to cover those on 
temporary duty and on leave, but in Rex v. Aughet, supra, p. 119, n. 21, the 
British government apparently took the position that the Anglo-Belgian 
treaty, comparable to the Anglo-French Declaration, did not cover those on 
temporary duty. The holding was, however, that it did. All these agreements 
gave exclusive jurisdiction to the sending state. 

13 It appears that under the Agreements with Korea, Saudi Arabia, 
Ethiopia, the revised Leased Bases Agreement, and the Agreement with the 
Philippines, the occasion for the presence of a member of the United States 
forces in the receiving state is immaterial, as it was under the Convention 
with West Germany. But the Agreement with Iceland uses the phrase "all 
such personnel being in the territory of Iceland in connection with operations 
under this Agreement"; that with Libya "who are in the territory of Libya 
in connection with operations under the present Agreement"; that with the 
Federation of the West Indies "who are there solely for the purposes of this 
Agreement"; and that with Australia "in Australia in connection with ac- 
tivities agreed upon by the two Governments." See also the British Agree- 
ment with Ethiopia, [1951] 93 U.N.T.S. 320. In none of these states could 
the situation arise of a member of the United States forces being on 
temporary duty or on leave in a state in which no United States forces 
were stationed, as it can in some NATO countries. 



162 



CIVILIANS 



Whether civilians employed by visiting armed forces — the so- 
called "civilian component" — should have the same immunity 
from the jurisdiction of the receiving state as members of visiting 
armed forces provoked prolonged debate among the NATO 
negotiators. There was, however, general agreement that de- 
pendents should not enjoy such immunities. 

The comments of writers regarding the immunity of armed 
forces characteristically make no reference to the civilian com- 
ponent and prior agreements show no consistent pattern. 14 There 



14 "That Act [The United States of America (Visiting Forces) Act, 1942 
of the United Kingdom] goes beyond the [Angelo-French] declaration of 1915 
and international usage in its inclusion of persons and groups who are not 
technically members of military forces but are associated with them and are 
subject to military law." Rand, J., in Reference Re Exemption of U.S. 
Forces from Canadian Criminal Law, [1943] 4 D.L.R. 11, 48. See also 
Chow Hung Ching v. The King, 11 Commw. L.R. 449 (Aust. 1948), dis- 
tinguishable because the civilians there involved were not accompanying an 
armed force. 

The Anglo-French Declaration of Dec. 15, 1915 {supra, p. 116), the model 
for many of the World War I agreements, referred to "the exclusive 
competence of the tribunals of their respective Armies with regard to per- 
sons belonging to these Armies," and left to local jurisdiction "persons not 
belonging to" the armies. The Exchange of Notes of January 3 and 14, 
1918 between the United States and France used the broader phrase, "per- 
sons subject to the jurisdiction of those forces whatever be the territory in 
which they operate or the nationality of the accused," and the word "per- 
sons" was denned to include "together with the persons enrolled in the 
Army, Navy and Marine Corps, any other person who under the American 
or French law is subject to military or naval jurisdiction, especially mem- 
bers of the Red Cross regularly accepted by the Government of the United 
States of America or the Government of the French Republic in so far as 
the American or French law and the customs of war place them under mili- 
tary or naval jurisdiction." The Belgian-American Exchange of Notes of 
July 5 and September 6, 1918 incorporated the same provisions, as did the 
American draft of the proposed agreement with Great Britain of August 
13, 1919; the British draft of May 31, 1919 had omitted the provision de- 
fining "persons." 

The United States of America (Visiting Forces) Act, 1942, 5 and 6 Geo. 
6, c. 31, applied to "a member of the military or naval forces of the United 
States of America," but further provided that "For the purposes of this Act 
and of the Allied Forces Act, 1940, in its application to the military and 
naval forces of the United States of America, all persons who are by the law 
of the United States of America for the time being subject to the military 



163 

or naval law of that country shall be deemed to be members of the said 
forces." 

The World War II agreements show no consistent pattern. The Chinese- 
American Arrangement of May 21, 1943, 57 Stat. 1248, E.A.S. 360, [1948] 
14 U.N.T.S. 358, and the Agreement between the United States and Belgium 
relating to the Congo, [1951] 109 U.N.T.S. 150, refer only to "members of 
such forces." The Sino-British Agreement of July 7, 1945, [1948] 14 
U.N.T.S. 462 "* * * includes uniformed members (i) of political or civil 
staffs attached to the British forces, (ii) of the women's auxiliary to the said 
forces, (iii) of the nursing staffs, male and female, (iv) of the staff of the 
Navy, Army and Air Force Institutes * * * members of the crews (other 
than Chinese nationals) of merchant ships belonging to or chartered or 
requisitioned by or on behalf of the Government of the United Kingdom 
* * * who are operating in conjunction with the British naval authorities." 
The Agreement of March 31, 1942 between the United States and Liberia, 
56 Stat. 1621, E.A.S. 275, [1948-49] 23 U.N.T.S. 302, covered "the military 
and civilian personnel of the Government of the United States and their 
families." The United States-Netherlands Agreement of May 16, 1944, 
[1951] 1 UST & OIA 601, TIAS No. 2212, [1952] 132 U.N.T.S. 356, and 
the Anglo-Belgian Agreement of the same date, [1951] 90 U.N.T.S. 284, 
contained virtually identical provisions, that in the former reading "the 
Service courts and authorities of the Allies * * * will have exclusive jurisdic- 
tion over all members of their forces and over all persons of non-Netherlands 
nationality not belonging to such forces who are employed by or who ac- 
company those forces and are subject to their naval, military or air force 
law." The Agreement between the United States and France of August 25, 
1944, supra, p. 114, provided that "British or American nationals not be- 
longing to such forces who are employed by or who accompany these forces, 
and are subject to Allied Naval, Military or Air Force Law, will for this 
purpose be regarded as members of the Allied Forces. The same will apply 
to such persons, if possessing the nationality of another Allied state pro- 
vided they were not first recruited in any French territory. If they were so 
recruited they will be subject to French jurisdiction in the absence of other 
arrangements between the authorities of their state and the French au- 
thorities." The Agreement of Septembr 3, 1947 between the United States 
and Italy, 61 Stat. 3661, TIAS No. 1694, [1950] 67 U.N.T.S. 16, stated: 
"13. The term 'United States Forces' when used in this agreement 
shall be defined as United States Armed Forces including persons of 
non-Italian nationality not belonging to such forces but who are em- 
ployed by or who accompany or serve with those forces and the de- 
pendents of such persons, and Governmental organizations and accredited 
agencies operating under or in conjunction with such forces whenever 
applicable. Included in the foregoing are : 
Class I. United States citizens who are : 

1. War Department civilian employees 

2. Personnel of the American Red Cross 

3. Personnel employed by the Army Exchange Service 



164 

is a discernible functional basis for granting such civilians im- 
munity, but the functions they serve are so diverse that one can- 
not generalize, and in any event the argument seems less 
compelling than in the case of military personnel. Perhaps a 
better case can be made on the basis that maintaining discipline 
and control over the armed forces requires that the commander 
also be able to maintain discipline and control over those accom- 
panying the force, and this requires exclusive jurisdiction in the 
sending state. It can hardly be said, however, that any rule of 
international law accords immunity — except, possibly, for official 
acts — to civilian employees accompanying armed forces, what- 
ever the rule may be regarding members of such forces. The 
success of the American representatives in securing the same 
immunities for the civilian component as for members of the 
armed forces under the NATO Agreement involved a major con- 
cession by other NATO members. 15 

The original American draft would have given the same status 
to military personnel and the civilian component, together con- 
stituting the "contingent," defined as those subject to the military 

4. Other personnel possessing United States Armed Forces orders, 
for the period covered by the order. 
Class II. United States citizens and aliens who are : 

1. Dependents of United States Armed Forces personnel, regardless 
of nationality. 

2. Dependents of Class I personnel indicated above. 

It can be said of these agreements, in general, that the Tfnited States and 
Great Britain (but not other states) were largely successful in obtaining 
immunity for civilians accompanying their forces — the dominant but not 
exclusive criterion being that the civilians were "subject to military or naval 
law"; that nationality in the receiving state, or in a third state, often dis- 
qualified a civilian; and that dependents were specifically referred to in only 
two agreements, those with Italy and Liberia. 

16 Section 64 of the Restatement, Foreign Relations Law, p. 199, states 
that "Except as otherwise expressly indicated by the territorial state, 
civilians accompanying a force that is present in the territory of another 
state with its consent are treated as members of the force for the purposes 
of the rules stated in Sections 58-63 only if 

(a) they are employed by the sending state to perform duties closely re- 
lated to the operation of the force and 

(b) they are subject to the rules governing the discipline and internal 
administration of the force under the law of the sending state." 

See also the Reporters' Note 2 (e) to Section 65, which states that the 
NATO Agreement "reflects the rule of international law stated in Sec- 
tion 64." 



165 

law of the sending state. 16 This approach met with vigorous 
opposition, particularly from the British representative. 17 The 
disagreement was resolved by incorporating a separate definition 
of the civilian component, which speaks of those "in the employ 
of an armed service" of the sending state rather than those sub- 
ject to its military law, thus according the civilian component a 
separate status. 18 Some of the negotiators believed, however, that 



16 The American representative stated the definition "arose out of United 
States Military Legislation, which assimilated certain categories of civilians 
to the military personnel; military legislation applied to them, even in time 
of peace, outside the national territories and certain territories under United 
States control." MS-R (51) 2. He quoted Article 2 (11) and (12) of the 
Uniform Code of Military Justice, 70 A Stat. 37, 10 U.S.C. 802. 

17 His objections were: (1) civilians accompanying the armed forces abroad 
were, under the law of perhaps a majority of states, subject to military law in 
time of peace, but under British law were so subject only in time of war; (2) 
as a result, the civilians of some sending states might not enjoy the same 
status as those of other sending states; (3) civilians were accorded no im- 
munity under the Brussels Treaty; (4) civilians accompanying the United 
States forces in the United Kingdom did not have the same status as the 
armed forces (but see note 14, supra) ; (5) civilians accompanying armed 
forces are few in number, move as individuals or in small groups, and are 
not subject to the same close discipline as the armed forces; (6) their 
duties are so various that defining those to be included would be difficult, 
and would require a system of identification which, in time of stress, might 
be difficult to control. MS-R (51) 2; MS-D (51) 3. But in the debate on 
the Bill to implement the NATO Agreement, the British Attorney General 
said: "We know that visiting forces, including our own, are likely to have 
people with them who are not citizens of the receiving country. They are 
for all practical purposes a part of the visiting forces. In these circum- 
stances it does not seem in the least unreasonable that they should be 
covered." 505 H.C. Deb. (5th ser.) 1155, (1952). 

18 The United States Representative first agreed to eliminate the reference 
to military law, proposing to substitute "persons serving with, employed by, 
or accompanying the armed forces." He then agreed, when it was objected 
that "accompanying" was too vague, to eliminate that word, "since the 
civilians in question were accompanying the military forces 'in the execu- 
tion of orders*, and, for this reason, they could be regarded as serving with 
the military forces or employed by them." Finally, it was agreed it would 
be preferable to cover civilians by a separate definition, which should apply 
to all civilian components of the armed forces "whether they were employed 
by the armed forces or acting under orders." MS (J)-R (51) 1. 

The definition ultimately incorporated in the Agreement, Article I 1 (b) 
is "the civilian personnel accompanying a force of a Contracting Party who 
are in the employ of an armed service of that Contracting Party, and who 
are not stateless persons, nor nationals of any State which is not a Party to 



166 

members of the civilian contingent who were nationals of the re- 
ceiving state should in no event be immune from its jurisdiction. 
They had agreed that the relationship between a member of a 
visiting force and the sending state should be controlling, but 
were not prepared to agree that the relationship between a mem- 
ber of the civilian contingent and the sending state should prevail 
over nationality in the receiving state. The definition of "civilian 
component" was therefore framed to exclude nationals of the re- 
ceiving state and also those ordinarily resident in that state. This, 
coupled with the exclusion of stateless persons and nationals of 
states not members of NATO, falls significantly short of a re- 
quirement of nationality in the sending state. 19 

the North Atlantic Treaty, nor nationals of, nor ordinarily resident in, the 
State in which the force is located." 

Difficulties of identification remain. The British Home Secretary, in the 
debate on the Bill to implement the NATO Agreement, noted that "* * * 
the description of civilian component in the Agreement has not enough legal 
certainty to be translated into terms of United Kingdom law, particularly as 
the arrangements vary in the different countries. * * *." The Bill hence set 
up a procedure for passports to be marked by the sending state and en- 
dorsed by an official of the United Kingdom. 505 H.C. Deb. (5th ser.) 568 
(1952). 

19 "13. With respect to paragraph (b) THE FRENCH REPRESENTA- 
TIVE proposed that the definition of the civilian personnel should specify 
that such personnel should possess the nationality of the sending State. 
Problems difficult to solve might arise, particularly under the application of 
Article VII, if the members of the civilian component belonged to a third 
nationality or were stateless. 

"14. THE UNITED STATES REPRESENTATIVE argued that under 
United States military regulations, civilian personnel accompanying the 
forces were subject to the same discipline as the military personnel. More- 
over, the United States would certainly include in the civilian component 
persons belonging to a different nationality from that of the sending or 
receiving States. The restriction proposed by the French Representative 
would leave members of a civilian component belonging to a third nationality 
without protection. 

"15. THE FRENCH REPRESENTATIVE said that the French Govern- 
ment was primarily concerned to obviate those difficulties which would arise 
at the time of entry into France of persons not belonging to the nationality 
of a NATO country or stateless persons. In some cases, such persons would 
be liable to be refused entry by the French Government. 

"16. THE CHAIRMAN proposed that Article I (b) should specify that 
the Agreement covered members of a civilian component who were not na- 
tionals of the receiving State, and further were neither stateless nor the 
nationals of a country other than the NATO countries. 



167 

The definitions in Article I of the NATO Agreement are im- 
portant only because they are relevant to the meaning of the 
crucial provisions of Article VII, granting and allocating jurisdic- 
tion. By Article VII 1. (a) the military authorities of the sending 
state can exercise in the receiving state the criminal and dis- 
ciplinary jurisdiction conferred on them by the sending state's 
law "over all persons subject to the military law of that State." 
To the extent that this gives such authorities the right to ex- 
ercise jurisdiction over others than members of their armed 
forces, the grant goes beyond any requirement of international 
law. The record indicates the concern of some of the negotiators 
that this grant might be interpreted too broadly. 20 Ultimately 



"17. THE FRENCH REPRESENTATIVE signified his willingness to 
submit this new wording to his Government." 
MS-R (51) 13. See also MS-D (51) 19. 

20 "15. In the same paragraph, several amendments had been submitted 
with a view to altering the categories of persons subject to the jurisdiction 
of the military authorities of the sending State. There were two alternative 
proposals: either to replace the existing phrase 'all persons subject to the 
military law of the sending State' by the wording 'members of its force or 
civilian component', or to add 'dependents'. 

"16. Several Representatives expressed the opinion that the existing word- 
ing was too comprehensive. Its effect would be to enable the receiving State 
to render anyone subject to its jurisdiction, merely by amending those provi- 
sions in the national legislation which specified which categories of persons 
were subject to military law. On the other hand, the deletion of the term 
'persons subject to military law' would prevent the sending State from 
exercising its jurisdiction in cases where it would be normal for it to do so 
(for example, in the case of a spy). It was argued in reply, that a distinc- 
tion should be drawn between two separate problems, first, which persons 
were subject to military law, and secondly, what were the powers of the mili- 
tary courts. In certain cases and in certain countries, persons who were 
not subject to military law (for example, nurses) were nevertheless subject 
to the jurisdiction of military courts. Lastly, a number of Representatives 
were doubtful whether dependents could be included. 

"17. THE FRENCH REPRESENTATIVE recalled that the existing text 
was already a compromise which had been reached after a lengthy discus- 
sion. He suggested that the difficulty might be solved by retaining the 
existing text as it stood, while adding the paragraph proposed by the Danish 
Delegation, which read as follows : 

'The above provisions shall not imply any right for the military au- 
thorities of the sending State to exercise jurisdiction over persons who 
are nationals of or permanent residents in the receiving State, unless 
they are members of the forces of the sending State'. 
"18. This proposal was accepted by the Working Group, subject to the 



168 

they were apparently satisfied that it would not, generally, be 
interpreted to include others than members of a force and the 
civilian component. 21 They wished, however, to preclude any 
possibility that nationals or residents of the receiving state who 
had no relation to the visiting force would be considered subject 
to the jurisdiction of the sending state. The concern with respect 
to the civilian component was primarily that nationals of the re- 
ceiving state should continue to be punishable under the local 
criminal law; with respect to those having no relation to the 
visiting force, the primary concern was to protect them from 
foreign jurisdiction. 22 It will be recalled that nationals of the 



Chairman's reservation of his position with respect to the definition of 
residents." 
MS-R (51) 14. 

21 "8. It was recalled that it had been previously agreed [though the docu- 
ments do not so indicate] that the phrase 'persons subject to the military 
law* should be replaced by the phrase 'members of a force or civilian 
component.' 

"9. THE CHAIRMAN pointed out that this paragraph did not call for 
the amendment which had been made in other Articles, since there was no 
risk of misunderstanding its meaning. The original wording was retained. 

"10. THE FRENCH REPRESENTATIVE was prepared to accept this 
wording, but felt bound to point out that the phrase 'subject to military law' 
had a very restricted meaning in France in peacetime. This wording would 
therefore appreciably reduce the powers of France as a sending State. The 
French Government, on their side, would regard members of a force or 
civilian component as falling within the scope of the paragraph. The Italian 
and Belgian Representatives associated themselves with this statement. 

"11. The Working Group agreed that this official statement by the Repre- 
sentatives of France, Italy and Belgium should be placed on Record." 
MS-R (51) 18. 

22 The point was raised by the Danish Government : 

"The Danish Government assumes that the sole purpose of the draft 
Agreement is to regulate the status of members of a 'force' or a 'civilian 
component' and, to a certain extent, of 'dependents' of the Contracting 
Parties. It is, therefore, assumed that the jurisdictional provisions of the 
draft do not purport to grant any authority to exercise jurisdiction over 
any person that is not a member of its force or civilian components. This 
interpretation of Article VII is presupposed in the definition contained in 
Article 1 (f) of the draft, and in the provision in paragraph 8 of Article 
VII, which also seems to appear from NATO document MS (J)-R (51) 6, 
paragraph 11. 

"In the opinion of the Danish Government there exists, however, the possi- 
bility that, apart from the context, the provisions in paragraph 1(a), para- 
graph 2, 1st subsection, and paragraph 3(b) might be interpreted as grant- 



169 

receiving state had been subjected to the jurisdiction of foreign 
military authorities in combat zones in wartime. The first of 
the World War I agreements had been designed expressly to 
negative such jurisdiction. There seems to be no basis whatever 
for saying they would be so subject in time of peace, except 
possibly for offenses committed on a base being used by a foreign 
force. The NATO Agreement, nevertheless, out of what may be 
considered an abundance of caution which suggests the major 
importance attached to the issue, expressly negatives any in- 
ference that the grant of jurisdiction in Article VII 1. (a) ex- 
tends to nationals of or those ordinarily resident in the receiving 
state, other than members of the visiting force. 23 



ing to the military authorities of the sending State the right to exercise 
jurisdiction (as regards paragraph 3 (b) : subsidiary jurisdiction) even 
over nationals and permanent residents of the receiving State, i.e., to the 
extent to which these persons, in time of peace or war, come under the 
military law of the sending State. In order to clarify this matter beyond 
all doubt, the following alternative amendments to Article VII are sub- 
mitted : 

(a) In paragraph 1(a) and paragraph 2, 1st subsection, the words 'all 
persons subject to the military law of that State' and 'persons subject to 
the military law of that State' should be substituted by 'members of 
their force or civilian component', or 

(b) In paragraph 1(a) and paragraph 2, 1st subsection, the words 'all 
persons' and 'persons' should be substituted by 'members of their force 
or civilian component', or 

(c) A new paragraph shall be inserted before the present paragraph 4; 

'The above provisions shall not imply the right for the military authori- 
ties of the sending State to exercise jurisdiction over persons who are na- 
tionals of or permanent residents in the receiving State, unless they are 
members of the forces of the sending State'." MS-D (51) 18. The first two 
amendments proposed were rejected but the third adopted. See note 20, supra. 

23 Article VII 4 states : "The foregoing provisions of this Article shall 
not imply any right for the military authorities of the sending State to 
exercise jurisdiction over persons who are nationals of or ordinarily resident 
in the receiving State, unless they are members of the force of the sending 
State." 

The Agreement with the Federation of the West Indies provides in 
Article XI (4) that: "The foregoing provision of this Article shall not imply 
any right for the military authorities of the United States to exercise 
jurisdiction over persons who belong to, or are ordinarily resident in, the 
Federation unless they are military members of the United States Forces." 
See also Article 8(4) of the Agreement with Australia. 



170 

The status to be accorded dependents occasioned much less 
difficulty. Apparently no representative vigorously urged that 
dependents were entitled to immunity under international law or 
should be accorded any immunity under the Agreement. There 
appears to be a complete absence of authority for the conclusion 
that any immunity enjoyed by a visiting armed force extends to 
dependents. The earlier treaties which regulated the status of 
visiting forces only rarely mentioned dependents expressly, 24 
and it is doubtful that the language of other treaties could be 
interpreted broadly enough to include them. In part this reflects 
the fact that the problem is largely new. 

It has now become not uncommon for dependents to accompany 
armed forces, including those of the United States, to some 
though not all foreign countries in which such armed forces are 
stationed. The negotiators of the NATO Agreement anticipated 
this in the NATO area. They did not, however, believe that giv- 
ing dependents immunity of any kind in so far as criminal juris- 
diction is concerned could be justified. 25 It has been convincingly 
demonstrated 26 that an analysis of Article VII of the NATO 
Agreement as a whole leads to the conclusion that dependents are 
not included among those accorded the agreed immunities — 
though they in fact enjoy certain immunities in some coun- 
tries 27 — and that the negotiators did not intend they should be. 



24 The Agreement between the United States and Liberia of March 31, 
1942, 56 Stat. 1621, E.A.S. 275, [1948-49] 23 U.N.T.S. 302, gave immunity 
to "the military and civilian personnel of the Government of the United 
States and their families"; the Agreement of September 3, 1947 between the 
United States and Italy, [1950] 67 U.N.T.S. 16, supra, note 14, also gave 
treaty status to dependents. See also the Anglo-Egyptian Treaty of 1936, 
U.K.T.S. No. 6 (1937). 

The Reporters' Note 2 (e) to Section 65 of the Restatement, Foreign Rela- 
tions Law, p. 208, states with respect to the status accorded dependents in 
the NATO Agreement that: "[T]he parties were in a position to deal with 
this special situation not previously regulated by international law." 

26 «* * * [Aj number of representatives were doubtful whether dependents 
could be included." MS-R (51) 14. One is tempted to suggest an analogy 
between dependents and passengers on a ship, or a "stranger to the vessel," 
but the differences are as real as the similarities. 

26 Snee and Pye, Status of Forces Agreements and Criminal Jurisdiction 
34-40 (1957). 

87 The Agreement between the United States and West Germany on the 
Status of Persons on Leave covers dependents. 



171 

The status of dependents is nevertheless significant for other 
purposes. 28 

Favorable as the NATO Agreement is to a sending state with 
respect to jurisdiction over members of a force and the civilian 
component, the jurisdiction which it accords to the military au- 
thorities of the sending state falls short of that which Article 
2(11) of the Uniform Code of Military Justice purported to give 
to American military authorities. Article 2(11) contains no 
limitation based on nationality, no requirement that the indi- 
vidual be employed by the armed forces in a strict sense, and 
was deemed to include dependents. 29 

The other post-World War II treaties to which the United 
States is a party have provisions different from those of the 
NATO Agreement defining the classes of persons covered other 
than members of the armed forces. Some define the classes 
broadly enough apparently to include all those covered by Article 
2 (11) of the Uniform Code of Military Justice, including de- 
pendents. Provisions of this type appear in the superseded Con- 
vention with West Germany, 30 the United States-Ethiopian 



88 E.g., an offense by a member of a force or of a civilian component 
against a dependent is an inter se offense (Art. VII, 3(a) (i)) and a de- 
pendent is entitled, when tried by the receiving state, to the rights enu- 
merated in Article VII, 9. 

"Dependent" is denned, in Article I, 1(c) as "the spouse of a member of 
a force or of a civilian component, or a child of such member depending on 
him or her for support." Parents are not included, but are in the Agreement 
with Japan, Article I (c) which, however, excludes children over 21 unless 
"dependent for over half their support." The Agreement with West Germany 
extends the concept to "close relatives" who meet certain requirements. 
Article 2, 2(c). But the Agreed Minutes provide that "The authorities of 
the forces shall limit as far as possible the number of close relatives * * * 
to be admitted to the Federal territory." 

Many agreements use the term "dependents" without denning it. 

29 Snee and Pye, op. tit. supra note 11, at 15; United States v. Weiman & 
Czevtok, 3 U.S.C.M.A. 216, 11 C.M.R. 216 (1953). But see the decisions of 
the Supreme Court regarding the constitutionality of Article 2(11), supra, 
note 2. 

80 Article 1, 7 defines Members of the Forces to include : 

"(b) Other persons who are in the service of such armed Forces or 

attached to them, with the exception of persons who are nationals neither 

of one of the Three Powers nor of another Sending State and have been 

engaged in the Federal territory; provided that any such persons who 



172 

Agreement, 31 the United States-Libyan Agreement 32 and the 
Agreement with Korea. 33 The Agreement with Japan defines 
"civilian component" more broadly than does the NATO Agree- 
ment; 34 hence under American primary jurisdiction with respect 

are stationed outside the Federal territory or Berlin shall be deemed 
to be members of the Forces only if they are present in the Federal 
Territory on duty (followers). 
"The following are considered 'members of the Forces': dependents who are 
the spouses and children of persons defined in subparagraphs (a) and (b) 
of this paragraph or close relatives who are represented by such persons 
and for whom such persons are entitled to receive material assistance from 
the Forces. The definition 'members of the Forces' shall include Germans 
only if they enlisted or were inducted into, or were employed by, the armed 
Forces of the Power concerned in the territory of that Power and at that 
time either had their permanent place of residence there or had been 
resident there for at least a year." 

81 Article XXIV states : "The term 'United States forces' includes mem- 
bers of the armed forces of the United States (including dependents of all 
such members) and persons accompanying, serving with or employed by 
said forces (including dependents of all such persons) who are subject to 
the military laws of the United States, but excluding indigenous Ethiopian 
nationals and other persons ordinarily resident in Ethiopian territory pro- 
vided that such nationals or other persons are not dependents of members 
of the United States forces. 

82 Article XXVIII states : " 'United States forces' include personnel be- 
longing to the armed services of the United States of America and accom- 
panying civilian personnel who are employed by or serving with such 
services (including the dependents of such military and civilian personnel), 
who are not nationals of, nor ordinarily resident in Libya; and who are in 
the territory of Libya in connection with operations under the present 
Agreement." 

The Agreement with the Federation of the West Indies includes in the 
definition of "Members of the United States Forces" in Article I: "[C]ivilian 
personnel accompanying the United States Forces and in their employ who 
are not ordinarily resident in the Federation and who are there solely for 
the purposes of this Agreement" and dependents. But see Article XI (4) 
of the Agreement, supra note 23. 

88 The United States is granted exclusive jurisdiction "over members of 
the United States Military Establishment in Korea"; the phrase is not 
further defined. The prior Agreement with Korea, 79 U.N.T.S. 62 (1951), 
did, however, accord such exclusive jurisdiction to the Commanding General 
"over the personnel of his command, both military and civilian, including 
dependents." 

84 Article 1 provides that 

"In this Agreement the expression 

******* 

(b) 'civilian component' means the civilian persons of United States 



173 

to the "civilian component" apparently extends to a larger class, 
but technically does not include dependents. The revised Leased 
Bases Agreement takes a different approach. It does not refer to 
persons "accompanying," "serving with" or "employed by" the 
armed forces. Rather it accords a special status to "a person sub- 
ject to United States military or naval law," a phrase the reach 
of which has been much restricted by the recent decisions of the 
Supreme Court referred to above. Also, the status of those "sub- 
ject to United States military or naval law" is not the same as 
that of a member of the armed forces. Under the Philippines 
Agreement, the concept of the civilian component and of de- 
pendents, as such, disappears altogether. Persons in those classes 
nevertheless are protected in a sense, in that the United States 
has exclusive jurisdiction with respect to all "on-base" offenses, 
by whomever committed. Outside a base, however, only members 
of the armed forces have an immunity of any kind. Finally, 
under the Agreement with Saudi Arabia, no persons other than 
"American military personnel," distinguished elsewhere in the 
Agreement from "civilian employees of the Mission" and "their 
dependents," have any immunity. 

More interesting than these variations with respect to the 
composition of the civilian component and the inclusion of de- 
pendents in or their exclusion from those protected by a treaty 
are provisions excluding from either group those closely related 
to the receiving state. 

The revised Leased Bases Agreement excludes from those given 
immunity as persons "subject to United States military or 
naval law" one who is "a British subject or local alien" (Art. 
IV(l)(c)) but "local alien" is denned (paragraph (9)(b)) to 
exclude "a national of the United States who is ordinarily resident 
in the Territory." This Agreement is thus more favorable to the 



nationality who are in the employ of, serving with, or accompanying, 
the United States armed forces in Japan, but excludes persons who are 
ordinarily resident in Japan. * * * For the purposes of this Agree- 
ment only, dual nationals, United States and Japanese, who are 
brought to Japan by the United States shall be considered as United 
States nationals." 

See United States v. Robertson, 5 U.S.C.M.A. 806, 19 C.M.R. 102 (1955) 
for an elaborate review of the meaning of "civilian component" under the 
prior Administrative Agreement with Japan under Article III of the 
Security Treaty. Feb. 28, 1952, 3 UST 3341, TIAS 2492. 



174 

sending state than the NATO Agreement, in that it does not 
exclude from the "civilian component" either stateless persons 
and nationals of non-NATO states, or United States nationals 
ordinarily resident in the receiving state. The Agreement with 
Japan, on the other hand, is less favorable to the sending state 
than the NATO Agreement. Membership in the "civilian com- 
ponent ,, is subject to the affirmative requirement of United States 
nationality, and even United States nationals are excluded if 
they are "ordinarily resident in Japan." The Administrative 
Agreement is unusual also in that it expressly deals with the 
case of dual nationality; one who has both United States and 
Japanese nationality is considered as a United States national if 
"brought to Japan by the United States." 

The United States-Ethiopian Agreement protects members of 
the armed forces, the civilian component (broadly defined) and 
dependents, but apparently excludes from the first two classes 
(but not from the third class, dependents) "indigenous Ethiopian 
nationals and other persons ordinarily resident in Ethiopian terri- 
tory," apparently including United States nationals. 35 



86 The Convention with West Germany was even more complicated. It 
excepted from both members of the forces and the civilian component, 
those who were nationals neither of one of the Three Powers nor of another 
Sending State "and have been engaged in the Federal territory." The 
Convention then added dependents to the class of "Members of the Forces," 
and finally incorporated a general limitation, i.e., "The definition 'members of 
the Forces' shall include Germans only if they enlisted or were inducted into, 
or were employed by, the armed Forces of the Power concerned in the 
territory of that Power and at that time either had their permanent place 
of residence there or had been resident there for at least a year." This 
clause thus appeared (1) to exclude from the protected class even some 
members of the armed forces; (2) further to limit those in the civilian 
component entitled to immunity; but (3) not to limit dependents, who 
hardly either "enlist" or are "inducted into" or are "employed by" the 
armed forces. 

The ideas which have found some recognition in the agreements may be 
catalogued as follows : 

Civilians who accompany the armed forces have a relationship to the 
sending state which justifies according them the agreed immunities, but 
such immunities may nevertheless be denied to those who : 

(1) are not, strictly speaking, employed by the armed forces (e.g., 
the NATO Agreement), or 

(2) are not nationals of the sending state (e.g., the Agreement with 
Japan), or 



175 

It seems entirely appropriate that variations of these kinds 
should appear in the status of forces agreements, since the cir- 
cumstances which the several agreements govern differ so widely. 
The dominant theme is that nationality in the receiving state dis- 
qualifies one for any immunity. This can be explained both in 
terms of the interest of the receiving state in continuing to con- 
trol the conduct of its nationals and in protecting its nationals 
from the control of another state. Nationals of third states give 
rise to a distinct problem ; if they are disqualified, it is presumably 
because the receiving state feels its interest in controlling their 
conduct while on its territory is superior to that of the sending 
state, based on the employment relationship alone, unsupported 
by the tie of nationality. Disqualification on the ground of 
residence in the receiving state apparently depends on the same 
factors as disqualification on the ground of nationality in that 
state, though the receiving state presumably has less interest in 
controlling and protecting its residents than in controlling and 
protecting its nationals. The balance between the interests of 
the sending state and the receiving state becomes even nicer when 
the individual is both employed by and a national of the sending 
state but ordinarily resides in the receiving state. The problem is 
illustrated by the Egyptian case in which a Greek national who 
had for long years resided in Egypt but enlisted in the Greek 
forces in Egypt, claimed immunity for an offense which consisted 

(3) are not nationals at least of one of its allies other than the receiving 
state (e.g., the NATO Agreement, and see the superseded Convention 
with West Germany) , or 

(4) are nationals of the receiving state (e.g., the NATO, revised Leased 
Bases and Ethiopian Agreements), or 

(5) ordinarily reside in the receiving state (e.g., the NATO and Ethio- 
pian Agreements, the Agreement with Japan), or 

(6) ordinarily reside in the receiving state and are not nationals of the 
sending state (e.g., the revised Leased Bases Agreement), or 

(7) were engaged locally and are not nationals of the sending state or of 
one of its allies, or were not engaged in the sending state or did 
not reside there even though they were engaged there and are na- 
tionals of the receiving state (the superseded Convention with West 
Germany) . 

Dependents may be, but usually are not, accorded the agreed immunities. 
If they are, an exception may be made for dependents who are nationals of 
or ordinarily resident in the receiving state (e.g., the Libyan Agreement), 
but in other instances no such exception has been made (e.g., the Ethiopian 
Agreement and the superseded Convention with West Germany) . 



176 

of a series of acts stretching back for years prior to his en- 
listment. 36 

It might seem strange that in some agreements neither 
nationality nor residence in the receiving state disqualifies a de- 
pendent, even though it does a member of the civilian component. 
This distinction is, however, understandable, for it reflects the 
judgment that family ties provide a stronger link to the sending 
state and alienate the individual more completely from the re- 
ceiving state than employment by the sending state. Dependents 
are likely to live within the foreign military community; local 
employees are not. Again, dependents will presumably in time 
become residents and nationals of the sending state; for local 
employees this is less likely. 

THE IMPACT OF REID V. COVERT 

The status of forces agreements negotiated prior to Reid v. 
Covert 37 were concluded on the assumption that American courts- 
martial could exercise jurisdiction over civilians accompanying 
our armed forces abroad. Reid v. Covert and the cases 38 applying 
and extending its doctrine have established that they may not — 
that Article 2 (11) of the Uniform Code of Military Justice, 39 
in purporting to give such jurisdiction to courts-martial in peace- 
time, is unconstitutional. What is the effect of those decisions on 
the jurisdictional arrangements of these agreements? 

The possible alternatives to the jurisdiction of courts-martial 
are (1) trial by a civil court of the United States in the receiving 
state (2) trial by a civil court of the United States in the United 
States or (3) trial by the receiving state. Are these permissible, 
or is any of them mandatory, under the several agreements? 

It seems too clear for argument that a civil court of the United 
States cannot try civilians in any foreign state without the con- 
sent of that state. Characteristically, the existing agreements do 
not include such consent. Rather, the consent is specifically 



88 Stamatopoulos v. Ministere Public, Mixed Court of Cassation, Egypt, 
Nov. 23, 1942, [1919-1942] Ann. Dig. (Supp. Vol.) 170 (No. 88). 



87 354 U.S. 1 (1957). 

88 Supra, note 2. 



89 70 A Stat. 37, 10 U.S.C. Sec. 802(11) : "Subject to the provisions of any 
treaty or agreement to which the United States is or may be a party or to 
any accepted rule of international law, all persons serving with, employed 
by, or accompanying the armed forces outside the United States and outside 
the following * * *." 



177 

limited to the exercise of jurisdiction by the military authorities 
of the sending state. 40 The only agreement which expressly con- 
templates that United States civil courts might sit in the receiving 
state are the revised Leased Bases Agreement and the Bahama 
Islands Agreement. 41 Three other agreements may perhaps be 
read as consenting to the exercise of jurisdiction by United States 
civil courts: those with the Philippines, 42 with Denmark regard- 
ing Greenland, 43 and the expired agreement with the Dominican 



40 Article VII of the NATO Agreement provides, in 1 (a), that "the mili- 
tary authorities of the sending State shall have the right to exercise within 
the receiving State all criminal and disciplinary jurisdiction conferred on 
them by the law of the sending State over all persons subject to the military 
law of that State"; in 2(a) that "The military authorities of the sending 
State shall have the right to exercise exclusive jurisdiction over persons 
subject to the military law of that State with respect to offences, including 
offences relating to its security, punishable by the law of the sending State, 
but not by the law of the receiving State"; in 3(a) that "The military au- 
thorities of the sending State shall have the primary right to exercise juris- 
diction over a member of a force or of a civilian component in relation to" 
certain offenses. Where jurisdiction of the receiving state is concerned the 
phrase used is, in contrast, "the authorities of the receiving State," not "the 
military authorities." The Agreement with Japan, and the Defense Agree- 
ment with Iceland contain comparable language. The Convention with West 
Germany, Article 6, stated in 1 that "the authorities of the Forces shall 
exercise exclusive criminal jurisdiction over members of the Force." The 
Agreement with Korea provides that "exclusive jurisdiction over members 
of the United States Military Establishment in Korea shall be exercised by 
courts-martial of the United States." The Agreement with Ethiopia provides, 
in Article XVII, 2 that "The United States military authorities shall have 
the right to exercise within Ethiopia * * *," and that with Libya contains 
similar language. 

41 The Bahama Islands Agreement — the revised Leased Bases Agreement 
is similar — provides in Article V that "(1) the Government of the United 
States of America shall have the right to exercise the following jurisdiction 
over offences committed in the Bahama Islands * * *", and jurisdiction is 
allocated in part on the basis of whether "a civil court of the United 
States is sitting in the Bahama Islands." Significantly, the jurisdiction 
allocated to the United States is greater if such civil court is sitting. 

"Article XIII provides that "The Philippines consents that the United 
States shall have the right to exercise jurisdiction * * *." Article XIV, 2 
refers, however, to "cases where the service courts of the United States have 
jurisdiction under Article XIII, * * *." 

"Article VIII provides that "The Government of the United States of 
America shall have the right to exercise exclusive jurisdiction * * *." But 
the Agreement was, in this respect, subject to being superseded by the 
NATO Agreement. 



178 

Republic. 44 The first alternative is therefore available, in any 
but these states, only if appropriate agreements are negotiated. 
Also, it would require that the United States extend its criminal 
law to offenses committed by the civilian component and de- 
pendents abroad, since they are no longer subject to the Uniform 
Code of Military Justice. 

Whether trial by a civil court in the United States is a per- 
missible alternative is a more complex question. Under the NATO 
Agreement, since American law does not, in most instances, now 
extend to offenses abroad, the receiving state now has exclusive 
jurisdiction over both the civilian component and dependents. 45 



** Article XV (1) provided that "the government of the United States of 
America shall have the right to exercise exclusive criminal jurisdic- 
tion * * *." But Article XV (2) used the language "Whenever military 
authorities of the United States of America may exercise jurisdiction over 
an alleged offender * * *." Moreover, the jurisdiction conferred was limited 
to "Members of the United States Forces" and "[0]thers subject to United 
States military law * * *." 

45 "The authorities of the receiving State shall have the right to exercise 
exclusive jurisdiction over members of a force or civilian component and 
their dependents with respect to offences * * * punishable by its law but 
not by the law of the sending State." Article VII 2(b). The receiving 
state always had primary jurisdiction over dependents. Article VII, 2(b), 
in giving the receiving state exclusive jurisdiction for offences not punishable 
by the law of the sending state, refers to "the law of the sending State," 
not the "military law" of that state. It can therefore be said that when 
Article VII, 3 refers to "cases where the right to exercise jurisdiction is 
concurrent," the meaning is "cases where the right of the military authori- 
ties of the sending State and the authorities of the receiving State is con- 
current." If it is so read, the subsidiary clauses of Article VII, 3, including 
(b), which provides that "In the case of any other offence the authorities 
of the receiving State shall have the primary right to exercise jurisdiction," 
can be read as relating only to the allocation of jurisdiction between such 
authorities. Article VII, 5(a) points the other way, however, toward the 
conclusion that the NATO Arrangements were intended to cover the whole 
field. "The authorities of the receiving and sending States shall assist each 
other in the arrest of members of a force or civilian component or their 
dependents in the territory of the receiving State and in handing them over 
to the authority which is to exercise jurisdiction in accordance with the 
above provisions." 

If the argument advanced was accepted, the United States could not, of 
course, claim that the civilian component and dependents had any immunity 
from the jurisdiction of the receiving state nor that the United States would 
have priority to exercise jurisdiction, and in normal course the receiving 
state would as a practical matter have the first opportunity to do so. Only 



179 

If, however, the United States should extend its criminal law to 
offenses by the civilian component and dependents abroad, the 
argument is available that it would be free to exercise jurisdic- 
tion through trials in the United States. The argument is that 
the NATO Agreement relates only to jurisdiction to enforce, not 
to jurisdiction to prescribe, that with respect to jurisdiction to 
enforce it purports only to allocate jurisdiction between the mili- 
tary authorities of the sending state and the receiving state's 
authorities ; that hence it does not preclude the sending state from 
exercising jurisdiction over the civilian component and de- 
pendents in the manner a state may and normally does over its 
nationals and others, for offenses committed abroad. 

Article VII is in essence confirmatory of the right of the mili- 
tary authorities of the sending state and of the authorities of the 
receiving state to exercise enforcement jurisdiction in the receiv- 
ing state. The right of the military authorities is, however, 
limited to exercising jurisdiction over those "subject to the mili- 
tary law of that State," which for the United States now excludes 
and for some states always has excluded the civilian component 
and dependents. 

If the argument suggested is not accepted, 46 or if the United 
States chooses not so to extend its criminal law, then, under the 
NATO Agreement the receiving State alone would have jurisdic- 
tion over the civilian component, as well as dependents, under 
existing arrangements. 

The situation under other agreements than the NATO Agree- 

a waiver by the receiving state would then give the United States priority. 
If the United States should elect so to extend and enforce its criminal law — 
in spite of the many obstacles, legal and practical, to effective administra- 
tion — the negotiation of implementing agreements would seem to be at least 
advisable. 

* 6 It can also be argued that the inability of the United States to exercise 
jurisdiction by courts-martial, as contemplated in the NATO Agreement, 
among others, constitutes a waiver under the appropriate provisions of the 
agreement, giving jurisdiction to the receiving state. See People v. Acierto, 
Philippines, Sup. Ct., Jan. 30, 1953 [1953] Int. L.R. 148, holding that where 
the United States concluded a Philippine national employed on a piece- 
work basis by the United States on a base was not subject to court-martial 
jurisdiction, there was a waiver which entitled the Philippines to exercise 
jurisdiction under the Agreement. See generally Daniels, "The Legal Basis 
of German Criminal Jurisdiction over United States Forces Civilians," 3 
JAG Bulletin 26 (1961). Cf. Re Gadois, France, Court of Appeal of Paris 
(Chambre des mises en accusation), Dec. 14, 1953, [1953] Int. L.R. 186. 



180 

ment may be but is not necessarily the same. The Libyan authori- 
ties appear now to have jurisdiction over the civil component and 
dependents, 47 although again it would not necessarily be exclusive 
if the United States saw fit to extend its criminal law to cover 
offences in Libya. In Ethiopia, 48 Korea, 49 and perhaps the Philip- 
pines, 50 on the other hand, a hiatus may exist. This last situation 
could lead a receiving state to claim that, since the status of 
forces arrangements were made on the promise, express or im- 
plied, that the United States could and would exercise jurisdiction 
over the civilian component and dependents, 51 its inability to ful- 
fill that duty relieves the receiving state of the obligation to re- 
spect the arrangements relating to the civilian component and 
dependents. The result would appear to be a reversion to the rule 
of international law in the absence of agreement, i.e., no im- 
munity for the civilian component and dependents, and concur- 
rent jurisdiction. 52 



47 Article XX of the Agreement, (1) and (2), authorize the United States 
military authorities "to exercise * * * all criminal and disciplinary jurisdic- 
tion conferred on them by the laws of the United States of America over 
members of the United States forces * * * and in every case where such 
criminal and disciplinary jurisdiction exists, the members of the United 
States forces shall be immune from the jurisdiction of the Libyan courts," 
but "in other cases the Libyan courts shall exercise jurisdiction unless the 
Government of the United Kingdom of Libya waives its right to exercise 
jurisdiction." Since "such criminal and disciplinary jurisdiction" no longer 
exists, the immunity no longer exists with respect to the civilian component 
and dependents. 

" Article XVII 3 of the Ethiopian Agreement provides : "Members of the 
United States forces shall be immune from the criminal jurisdiction of 
Ethiopian courts * * *." 

49 The Agreement with Korea provides that "exclusive jurisdiction over 
members of the United States Military Establishment in Korea will be 
exercised by courts-martial of the United States." See also Article VIII of 
the Agreement with Denmark regarding Greenland. 

60 The Philippines Agreement can be read to give the United States ex- 
clusive jurisdiction over "on-base" offenses, but was interpreted by a 
Philippines court merely to give it primary jurisdiction over such offenses. 
See People v. Acierto, note 46, supra. 

61 For example, Article II of the NATO Agreement provides: "It is the 
duty of a force and its civilian component and the members thereof as well 
as their dependents to respect the law of the receiving State * * *. It is also 
the duty of the sending State to take necessary measures to that end." 

52 Unless, as may be true under the NATO Agreement, the result is ex- 
clusive jurisdiction in the receiving state. 



181 

Possibly, in the alternative, it could be said that since these 
agreements were predicated on a mistake of law 53 or, specifically, 
on a mistake as to the limitations of the American Constitution, 54 
they are, as regards the civilian component and dependents, no 
longer effective. The result again would be a reversion to the 
situation under international law in the absence of agreement. 

Another possible approach to the whole problem, suggested by 
the Court, 55 is to incorporate civilians into the armed forces. The 
extent to which that could be done appears to be more a question 
of constitutional law than of international law. The definitions 
in our agreements are broad enough to suggest some leeway, al- 
though there are undoubtedly limits beyond which we could not 
go without dissent from the receiving state. 56 The interested De- 
partments have so far, however, rejected this solution. 57 



es "Writers on international law are in general agreement that errors of 
law do not have the same juridical effect as is produced by errors of fact, 
and that international law does not recognize that States may take ad- 
vantage of their ignorance of the law to free themselves from treaty obliga- 
tions resulting from such ignorance." Harvard Research, Law of Treaties, 
29 A.J.I.L. Supp., at 1129 (1935). 

64 But see 2 Hyde, International Law, 1385 (2d ed. 1945). Usually the 
argument is made by a state which seeks to avoid the consequences of a 
concession made by it in the treaty. The argument seems much less persua- 
sive when the concession was made to it, and its internal law makes it im- 
possible for it to claim the advantages of the concession. 

B6 McElroy v. Guagliardo, 361 U.S. 281, 286 (1960). 

66 The NATO Agreement, in Art. I, 1(a), defines "force" as "the personnel 
belonging to the land, sea or air armed services of one Contracting Party." 
The revised Leased Bases Agreement, in Article IV, 9(c) defines "member of 
a United States force" as "a member (entitled to wear the uniform) of the 
naval, military or air forces of the United States of America." Compare 
Chow Hung Ching v. The King, 77 Commw. L.R. (Aust.) 449 (1948). 

57 "We have examined Mr. Justice Clark's suggestion that overseas civilian 
employees might be incorporated directly into the armed services, either by 
compulsory induction or by voluntary enlistment. For a variety of reasons, 
this proposal was rejected as undesirable and infeasible. 

In addition, the following alternatives and combinations thereof are also 
under consideration : 

1. Military status acquired through written agreement or oath to submit 
to the laws and regulations for the Government and discipline of the Armed 
Forces. 

2. Constitutional amendment. 

3. Host nation trials. 

4. Domestic trials in Federal district courts. 

5. Oversea trials in itinerant Federal district courts. 



182 

It should be kept clearly in mind that the decisions of the 
Supreme Court in no way affect members of the armed forces. 
Their status remains that accorded to them in the several status 
of forces agreements or, in the absence of an agreement, that 
recognized by international law. The status of the civilian com- 
ponent and of dependents accompanying our armed forces has, 
however, been markedly altered by those decisions. Their status 
can no longer be determined solely by reference to the relevant 
agreement, but only by reading the agreement in the light of the 
decisions. Generally, any immunity accorded them has been nulli- 
fied, and the civilian component and dependents are subject to 



6. Oversea trials in special tribunals convened by the military but con- 
sisting of civilian judges and juries. 

Each of these involves various problems. The last three present the 
delicate question whether foreign nations would give their consent to such 
trials and whether the Congress would, if necessary, agree to reciprocal 
treatment for crimes committed by foreign civilians in this country. Trials 
abroad also present problems of impaneling grand and petit juries, sub- 
penaing foreign witnesses, and establishing staffs of prosecuting attorneys. 

Trials in the United States present problems of our authority overseas to 
arrest offenders, of extradition, and of subpenaing and transporting foreign 
witnesses. 

In addition to these procedural problems, there are substantive ones as 
well. At the threshold is the constitutional question whether the Federal 
Government has the power to legislate concerning common-law crimes com- 
mitted by American citizens overseas, particularly offenses against foreign 
nationals. 

Assuming that this power exists, should new penal laws be confined to 
crimes committed "on base" — which is apparently the outer limit of the 
statutory "maritime and territorial jurisdiction" as defined in 18 U.S.C. 
7(3) — assuming that section to be applicable — or extend to all crimes re- 
gardless of locus? 

Should such laws apply to military employees and dependents, to all 
Government employees and their dependents, to tourists? 

Could distinctions between classes of civilians abroad constitutionally be 
drawn? 

What kind of crimes should be covered — minor as well as major? 

What should the penalties be? 

Should the District of Columbia Code be incorporated by reference? 

If so, should subsequent amendments thereto be automatically extended to 
offenses abroad; should other Federal district courts be bound to follow the 
interpretations of the District of Columbia District Court?" Mr. Benjamin 
Forman, Asst. General Counsel, Department of Defense, Hearings Before the 
Subcommittee of the Senate Committee on Armed Services, 86th Cong., 
2d Sess., June 8, 1960. 



183 

the jurisdiction of the receiving state, as they are under interna- 
tional law in the absence of a treaty. 

This does not mean, however, that the concepts "the civilian 
component" and "dependents" are no longer significant. An 
offense by a member of a force may be an inter se offense, over 
which the sending state has primary jurisdiction, where the 
victim is a member of the civilian component or a dependent, 58 as 
well as where the victim is a member of the force. More impor- 
tant, a member of the civilian component or a dependent is com- 
monly entitled, when tried by the receiving state, to all the rights 
guaranteed an accused member of a force. 59 It is most interesting 
that in the Australian Agreement, negotiated after Reid v. Covert 
and its companion cases 60 were handed down, both the terms 
"members of the civilian component" and "dependent" are de- 
fined very broadly. 61 It is understandable that a receiving state 
should be prepared to agree to such broader definitions where the 
effect of inclusion in a class is not to qualify the receiving stated 
jurisdiction over the included persons, but the more limited 
effect noted. 



58 See Chapter IX, infra. 
69 See Chapter XIII, infra. 

60 Note 2, supra. 

61 "Article 1. 

In this Agreement, except where the contrary intention appears : 
* * * 

'members of the civilian component* means civilian personnel in 
Australia in connection with activities agreed upon by the two Govern- 
ments who are neither nationals of, nor ordinarily resident in, Australia, 
but who are : 

(a) employed by the United States Forces or by military sales ex- 
changes, commissaries, officers' clubs, enlisted men's clubs or other 
facilities established for the benefit or welfare of United States person- 
nel and officially recognized by the United States authorities as non- 
appropriated fund activities ; or 

(b) serving with an organization which, with the approval of the 
Australian Government, is accompanying the United States Forces; 
'dependent' means a person in Australia who is the spouse of, or other 

relative who depends for support upon, a member of the United States 
Forces or of the civilian component." 



CHAPTER IX 
INTER SE OFFENSES 

Certain status of forces treaties, including the NATO Agree- 
ment, 1 in allocating jurisdiction, take into account not only the 
status of the accused but also of the victim, by giving the sending 
state exclusive or primary jurisdiction over inter se offenses. The 
concept of an inter se offense is necessarily dual. The attitude is 
reflected that if the relationship of both the accused and the 
victim to the sending state is sufficiently close and to the re- 
ceiving state sufficiently remote, it is appropriate to give the send- 
ing state exclusive or primary jurisdiction. 

The place given the concept of the inter se offense is not the 
same in all the agreements. In part, this is because other con- 
cepts, such as that of the on-base offense, cut across the field. 
This may also be because in some agreements the fact that an 
offense is inter se gives the sending state exclusive jurisdiction, 
rather than only primary jurisdiction. In addition, however, it 
seems that in different circumstances, different judgments have 
been made regarding what relationships of the accused and of 
the victim to the sending and receiving states justify invoking 
the concept. 

The basic issue is whether the relationship of the victim to 
either state is relevant at all in allocating jurisdiction over an 
offense. The passive personality principle, according to which 
jurisdiction may be predicated on the nationality of the victim, 
never won wide acceptance in international law. 2 There is, how- 
ever, a wide difference between asserting jurisdiction solely on the 



1 Article VII 3(a) provides "The military authorities of the sending state 
shall have the primary right to exercise jurisdiction over a member of a 
force or of a civilian component in relation to 

(i) offences solely against the property or security of that State, or 
offences solely against the person or property of another member of the 
force or civilian component of that State or of a dependent." 

8 Supra, page 13. 



186 

ground that the victim is a national of the state and taking the 
nationality of the victim into account as one factor among many 
in allocating jurisdiction. 

The interest of a state in whose territory an offense occurs is 
in fact influenced by the nationality of the victim. This has not 
led to any general limitation of the territorial principle. It has, 
however, been reflected in the accepted rules or in the practice 
in resolving some jurisdictional conflicts where a state other than 
the territorial state has a legitimate basis for claiming concurrent 
jurisdiction. Some states have limited their assertion of jurisdic- 
tion under the nationality principle to cases in which the victim 
was also a national. 3 The clearest case, however, of weighing 
the relative closeness of the victim to the sending and receiving 
state has been where an offense was committed on a merchant 
vessel in a foreign port. If the peace of the port is not disturbed 
and the victim is a fellow member of the crew, then, even though 
he may be a national of the littoral state, the flag state is, in 
practice, given primary jurisdiction. Where, however, the victim 
is a stranger to the vessel (which normally means he is a national 
of the littoral state) jurisdiction is exercised by the littoral 
state. 4 It has been suggested that the same distinction should be 
made where an offense is committed on a warship in a foreign 
port. 5 No such rule has been urged with respect to offenses on 
shore — all offenses are subject to the jurisdiction of the littoral 
state, regardless of the relationship of the victim to either state, 
except, perhaps, on-duty offenses by a member of a warship's 
crew. But the littoral state has in practice often drawn the same 
line, waiving its prior claim to jurisdiction where the victim was 
a fellow member of the crew. 6 Where both the accused and the 
victim were members of the crews of warships, the littoral state 
has waived its jurisdiction, even where the offense was murder. 7 
Where visiting land forces were concerned, the United Kingdom, 
although it claimed concurrent jurisdiction, normally did not 
exercise jurisdiction where the victim was also a member of the 



8 Supra, page 11. 
* Supra, page 51. 
6 Supra, page 68. 
8 Supra, page 75. 

T See the incident cited by Colombos, op. cit. supra, p. 74, note 30, at 
203-204. 



187 

visiting force. There is evidence that this attitude has general 
support. 8 

This is not to say that the territorial state is interested in 
exercising jurisdiction only when the victim is its national. There 
are many policy reasons which prompt states to assert jurisdic- 
tion on the territorial principle. One, but only one, is to protect 
its own nationals by punishing those who injure them or their 
property, In balancing those reasons against the considerations 
which support giving at least primary jurisdiction to the sending 
state over visiting forces, the fact the victim is a member of the 
visiting force, rather than a national of the receiving state, may, 
however, tip the scale. 

It has been said that to grant exclusive or primary jurisdic- 
tion to the sending state over inter se offenses constitutes a 



8 During the debate on the United States of America (Visiting Forces) 
Act, 1942, Mr. Henderson said : "I can understand the desire of the American 
Government for exclusive jurisdiction, and of course no question arises so 
far as that is concerned with their own subjects and with crimes against 
the person and property of other Americans. But when we come to deal 
with crimes against British subjects, then at once we enter into a very 
difficult field, where it is very necessary that we should think out how 
friction can be avoided and how any feeling that there has been partiality 
or unfairness can be prevented. * * *" 382 H.C. Deb., (5th ser.) 909 (1942). 

In the debate on the Bill to implement the NATO Agreement, several 
members expressed the same attitude. Thus, Mr. Fletcher said : "I can see a 
considerable amount of force in the argument that where an offence is 
committed against a member of a foreign force, in this country, or against 
the property of a foreign force, it may be well that in those cases the 
foreign service court should have jurisdiction. But the case is totally 
different where the offense is committed not against a foreigner or his 
country but against a British subject. It is that class of case which is really 
causing the greatest concern among those who are troubled about this Bill. 
Therefore, I would like to exclude from Clause 3 any offense committed 
against a British subject, even though it is committed in the course of 
duty by a member of a foreign force." 505 H.C. Deb. (5th ser.) 1158, (1952). 
See also the comments of Mr. Stewart, id., at 1161, and of Mr. Strachey, 
id., at 578 (1952), and the instances cited, infra, p. 223, where immunity 
for offenses committed in performance of duty was objected to because it 
would apply where the victim was a national of the receiving state. 

See, however, Rex v. Nauratil, England, High Court, Warwick Assizes, 
March 11, 1942, [1919-1942] Ann. Dig. (Supp. Vol.) 161 (No. 85), in 
which Cassels, J. said: "It is said I ought to take into consideration the 
fact that only Czechoslovak soldiers and citizens are concerned in that matter, 
which, in fact, arose within the lines of the camp. I cannot say that there 
is a tremendous force in that argument. * * *" 



188 

modern form of extraterritoriality, granted to protect the indi- 
vidual offender rather than his state. 9 It is submitted that this 
comes too near to saying that the territorial principle is rooted 
in, or itself embodies, a single rather than a complex of policy 
considerations, opposed, where armed forces are concerned, by a 
single functional basis for overriding the territorial principle and 
granting immunity. Allocating jurisdiction over visiting forces 
involves balancing a whole complex of interests of both states. 
Specifically, it can be said that there is always some basis for 
according immunity to a member of a visiting force, even for a 
private act against a stranger to the force. The basis may, in 
some situations, be compelling; in others, particularly when it is 
in itself relatively weak, it may be outweighed by conflicting in- 
terests of the receiving state. The fact that immunity is denied 
when the victim is a national of the receiving state does not 
imply that there is no basis for the immunity, but merely that 
it is not sufficiently compelling. By the same token, the fact 
the immunity is granted only when the victim is a member of the 
military community does not mean the immunity lacks a func- 
tional basis. No one would deny that the desire to protect the 
individuals in its armed forces from the jurisdiction of foreign 
courts has added vigor to the demands of sending states for im- 
munity. This does not mean it has alone motivated those de- 
mands. 



• "The other category of offenses as to which the receiving state is denied 
primary jurisdiction consists of crimes committed by a member of the armed 
forces against persons forming part of the military community. It is diffi- 
cult to associate this qualified immunity with the need of protecting the 
sending state in its sovereign functions. It is true that jurisdiction over 
these offenses may assist the military authorities of the sending state to 
maintain discipline, but why should the dividing line between the jurisdic- 
tion to maintain discipline be drawn on the basis of the nationality of the 
victim and the calling he pursues? Candor compels one to admit that this 
primary jurisdiction over offenses committed against other members of the 

military community is a modern form of extraterritoriality. * * * 

******* 

"The concession to the sending state of primary jurisdiction over offenses 
committed within the military community and, to a much more limited ex- 
tent, over offenses committed while the individual is in the performance of 
official duties thus appears to be grounded in a desire to protect the in- 
dividual, rather than the state." R.R. Baxter, "Jurisdiction Over Visiting 
Forces and the Development of International Law," 52 Proceedings Am. 
Soc'y Int'l L. 174, 175-176 (1958). 



189 

The NATO Agreement gives a measure of immunity to mem- 
bers of the visiting force and to the civilian component but not to 
dependents. An offense can be inter se only if committed by a 
member of the force or the civilian component. An offense by a 
member of either group is, however, inter se if it is committed 
against a member of the force or of the civilian component or a 
dependent. The record is not clear as to why the distinction was 
made. Possibly there is reflected the desire to protect a member 
of the visiting force or civilian component but not a dependent. 
More probably, there was thought to be a persuasive reason for 
giving primary jurisdiction to the sending state over members of 
its military forces and civilian components. That reason was 
thought to be sufficiently compelling when the victim was a 
dependent, as well as when he was a member of the visiting 
force or the civilian component, but not strong enough to prevail 
when he was a stranger to the force. At the same time it was 
felt — as it consistently could be — that there was never a sufficient 
basis for giving treaty status to a dependent, regardless of the 
status of the victim. 10 

The revised Leased Bases Agreement and Bahama Islands 
Agreement are particularly interesting because the phrase used 
to describe inter se offenses is "United States interest offences." n 



10 It may be urged that if this was the approach of the NATO negotiators, 
they should, to be consistent, have denned the civilian component in two 
different ways, eliminating the limitation excluding nationals of the re- 
ceiving state in denning those members of the civilian component an 
offense against whom would be within the community, since the limitation 
does not appear in the definition of dependents, which is relevant only for 
this purpose. Two answers suggest themselves: (1) The failure to make 
the distinction may be an accident of draftsmanship of the type that is 
inevitable in a tightly drafted series of interlocking clauses; (2) A de- 
pendent, even though a national of the receiving state, is much more a mem- 
ber of the military community than a member of the civilian component, e.g., 
an employee of the PX or Naval Exchange, who is a national of the re- 
ceiving state. 

11 Article IV (9) (f) of the revised Leased Bases Agreement reads: 

"(f) 'United States interest offense' means an offense which (ex- 
cluding the general interest of the Government of the Territory in 
the maintenance of law and order therein) is solely against the in- 
terests of the Government of the United States of America or against 
any person (not being a British subject or local alien) or property (not 
being property of a British subject or local alien) present in the Terri- 
tory by reason only of service or employment in connexion with the 



190 

The phrase is apt in suggesting the motives for the use of the 
concept. The concept is, however, given a relatively limited 
place in these agreements, perhaps because jurisdiction is allo- 
cated largely with reference to whether an offense was com- 
mitted on or off a Leased Area or Site and because the agree- 
ments do not provide for a primary right to exercise jurisdiction 
where there is concurrent jurisdiction. It is, however, the basis 
for according the United States exclusive jurisdiction in two 
situations. If a state of war does not exist, the United States 
has exclusive jurisdiction over security offenses and over United 
States interest offenses committed inside a Leased Area or Site 
by a member of its forces. 12 This is the only situation in which, 
in peacetime, the fact that the offense is inter se is relevant. If 
an offense is committed outside a Leased Area or Site by a mem- 
ber of the American forces or anywhere by a member of the 
civilian component, the allegiance of the victim is irrelevant. If, 
on the other hand, a state of war exists, the United States has 
exclusive jurisdiction over members of the American forces for 
any offense and also is given exclusive jurisdiction over security 
offenses and United States interest offenses committed within a 
Leased Area or Site if the accused is "not a member of a United 
States force, a British subject or a local alien, but is a person 
subject to United States military or naval law." 13 

These agreements parallel the NATO Agreement in delineating 
the classes to which an accused must belong before jurisdiction 
may be claimed by the sending state on the ground the offense 
was inter se, even to excluding members of the civilian component 
who are nationals of the receiving state. They differ in fixing the 
classes to which the victim must belong before an offense can be 
classified as inter se, excluding dependents. 14 

construction, maintenance, operation or defense of the Bases." 
The phrase "British subject" is denned in (a) of the same paragraph to 
exclude a member of the United States force, but not of the civilian 
component. See Article V(9) (c) and Article 1(6) of the Bahama Islands 
Agreement. 

"Article IV (1) (a) (ii) of the Leased Bases Agreement and Article 
V(l) (a) (ii) of the Bahama Islands Agreement. The Agreement with the 
Federation of the West Indies is, however, substantially the same as the 
NATO Agreement. See Article IX (3), and Article I. 

18 Article IV(l)(c)(i) of the Leased Bases Agreement and Article 
V(l) (c) (i) of the Bahama Islands Agreement. 

14 Articles cited note 11, supra. 



191 

One may speculate regarding the reasons for setting the par- 
ticular limits which define a United States interest offense and 
prescribe the relevance of the concept in these Agreements. The 
fact that the United States is given exclusive jurisdiction over 
on-base offenses by a member of the civilian component if com- 
mitted against a member of its forces or the civilian component 
in time of war, but not in time of peace, strongly supports the 
view that the basis for the immunity is functional, that is, stems 
from military exigency. A state may be interested in protecting 
the individuals in its service from the jurisdiction of foreign 
courts, but it is not likely to be more interested in doing so in 
time of war than in time of peace. There is, however, a greater 
functional basis for claiming immunity in time of war. 

The Philippines Agreement, to an even greater degree than the 
revised Leased Bases Agreement, allocates jurisdiction according 
to whether the offense was committed within or outside a base. 
The United States has virtually exclusive jurisdiction over all 
on-base offenses; hence there is no room for the concept of the 
inter se offense. (It is worth reminding oneself at this point, 
however, that the on-base concept is closely related to the concept 
of the inter se offense.) The Philippines Agreement, nevertheless, 
exempts from this grant of exclusive jurisdiction to the United 
States offenses "where the offender and offended parties are both 
Philippine citizens (not members of the armed forces of the 
United States on active duty) ." 15 This clause recognizes partially 
the interest of the receiving state in punishing those who offend 
against its citizens — an interest which is more completely recog- 
nized in other agreements. The Philippines object to their Agree- 
ment precisely because the recognition of this interest is partial, 
and jurisdiction is not accorded to the Philippines in all cases 
of private acts against Philippine nationals. It may be the 
Philippines would not object to an agreement which gave the 
same recognition to the concept of an inter se offense as does 
the NATO Agreement. 

On the other hand, the Philippines Agreement does give a role, 
though a very limited role, to the concept in allocating jurisdic- 
tion over off-base offenses. The United States is given exclusive 
jurisdiction over "any offense committed outside the bases by any 
member of the armed forces of the United States in which the 



18 Article XIII, 1(c). 



192 

offended party is also a member of the armed forces of the United 
States." 16 The fact that an off -base offense by a member of the 
armed forces is against a member of the civilian component or a 
dependent does not give the United States jurisdiction. Neither 
does the United States have jurisdiction over an off -base offense 
committed by a member of the civilian component or a dependent 
against a member of the armed forces or of the civilian com- 
ponent or a dependent. 17 

The Agreement with Libya in this respect contrasts markedly 
with the Philippine Agreement. The United States has exclusive 
jurisdiction over "members of the United States forces" for 
"offenses committed solely within the agreed areas" and for 
"offenses solely against the property of the Government of the 
United States of America, or against the person or property of 
another member of the United States forces." 18 The phrase 
"United States forces" is, however, defined in such broad terms 19 
that an offense by a member of the armed forces or of the 
civilian component or a dependent against a person in any of 
these groups (excluding Libyan nationals), wherever committed, 
falls under American jurisdiction. The situation with respect to 
on-base offenses, on the other hand, parallels that in the Philip- 
pines. 20 

Reid v. Covert and its companion cases 21 have not changed the 



"Article XIII, 1(b). 

17 The Agreement contemplates that the local fiscal (prosecuting attorney) 
may waive jurisdiction in these and other cases, in which event the United 
States is free to exercise jurisdiction. See Article XIII, 4. 

18 Article XX (1) (b) and (a). 

19 " 'United States forces' includes personnel belonging to the armed 
services of the United States of America and accompanying civilian person- 
nel who are employed by or serving with such services (including the de- 
pendents of such military and civilian personnel), who are not nationals of, 
nor ordinarily resident in Libya; and who are in the territory of Libya in 
connection with operations under the present Agreement." Article XXVIII. 

20 The allocation of jurisdiction under the Agreement with the Dominican 
Republic resembled that under the Libyan Agreement. The United States 
had exclusive jurisdiction over all offenses committed in the Republic by 
members of the United States forces and others subject to United States 
military law, except Dominican nationals or local aliens. The one exception 
was with respect to offenses committed outside the sites against a Dominican 
national or local alien; in such cases, the Mixed Military Commission de- 
cided who should exercise jurisdiction. Article XV (1) (a) and (b). 

81 Supra, p. 157, note 2. 



193 

reach of the concept of the inter se offense. It is true that if the 
accused is not a member of the armed forces, an American court- 
martial cannot exercise jurisdiction, even though the offense is 
inter se, e.g., by a member of the civilian component against a 
dependent. If the accused is a member of the armed forces, how- 
ever, and the victim is either a member of the civilian component 
or a dependent, the offense is still inter se under the NATO 
Agreement. 22 The same is true under the other agreements in 
which the concept is used. An offense by a member of the armed 
forces is still inter se, even though the victim is of a class over 
which a United States court-martial can no longer exercise juris- 
diction. 

The agreements discussed suggest that, while the role assigned 
the concept of the inter se offense has varied, there is general 
agreement that it has a place in allocating jurisdiction. 23 One 
should not, however, overestimate the reach of any of the provi- 
sions incorporating the concept. A series of acts, or even a single 
act, against a member of the military community may also offend 
against a distinct and discernible, if not vital, interest of the re- 
ceiving state. 24 The suggestion has been made 25 that, under the 
NATO Agreement, where the offenses are of roughly equal 



22 If the United States had, in the NATO negotiations, succeeded in its 
effort to have used the combined term, "contingent," defined as those subject 
to the military laws of the United States, the result of Reid v. Covert 
would have been to narrow the scope of the treaty language. 

28 Some of the agreements, including the NATO Agreement, include in 
the concept offenses against the property or security of the sending state or 
against the property as well as the person of a member of the military com- 
munity. It seems unnecessary to discuss these provisions in detail. If the 
concept is valid where an offense is against a person, a fortiori it is valid 
where an offense is against the property or the security of the sending 
state, since the interest of the receiving state in punishing offenses of this 
nature is presumably less than in punishing offenses against a person. 

24 Snee and Pye, Status of Forces Agreement: Criminal Jurisdiction 55-7 
(1957). The authors cite the Buxton case, ACM 8708, 16 CMR 732, in which 
the accused, a member of the United States forces, stole pistols belonging 
to the United States and sold them to Moroccans. The French agreed that 
under the French Moroccan Agreement (classified) the United States had 
primary jurisdiction with respect to the larceny, but claimed primary juris- 
diction over the offense of illegal trafficking in arms. The authors note also 
that an assault may be considered as a breach of the peace and therefore 
not solely against the victim, and a sexual offense one against public 
decency as well as against the person. 

"Snee and Pye, op. cit. supra, note 24, at 57. 



194 

gravity, each state should exercise jurisdiction over the offense 
regarding which it has the primary right, but that where one is 
of distinctly greater gravity, only the state having the primary 
right with respect to that offense should exercise jurisdiction. 

Under the NATO Agreement the fact that an offense is within 
the military community gives the sending state only primary, not 
exclusive jurisdiction. The word "primary" presumably means 
priority in time. The fact that one state has the primary right to 
exercise jurisdiction hence suspends, rather than eliminates, the 
concurrent but secondary right of the other state. 26 Theoretically, 
then, recognition of a primary right in one state and its exercise 
may create a problem under the double jeopardy provision. 27 It 
may be that in this context the approach to the multiple offense 
problem should be as technically nice as that which normally 
characterizes the handling of double jeopardy problems. It would, 
however, seem more in keeping with the spirit of the NATO 
Agreement to interpret broadly the provision giving primary 
jurisdiction to the sending state over inter se offenses. The re- 
ceiving state can, after all, later assert its secondary jurisdiction 
in the unlikely event that the action taken by the sending state is 
unsatisfactory, and in this case the double jeopardy provision 
may well not be a bar. 

The shape of the problem is somewhat different where the send- 
ing state is granted exclusive jurisdiction over inter se offenses. 
A stricter interpretation of what constitutes such an offense may, 
in this context, be in order. Perhaps drawing a line in terms of 
the place of the offense — whether on-base or off-base, as the 



"Labelle v. Zerfoss, No. 254/1954 (Cour de Cassation, 7 Mar. 1957), 
affirming Gadois v. Zerfoss (Cour d'Appel de Paris, 14 Dec. 1953), 81 
Journal du droit international 737 (1954), summarized in Snee and Pye, 
op. cit. supra, note 24, at 69-70. 

27 In the Whitley case (Cour de Cassation, 25 March 1958) which arose 
when a car being driven by a Major in the USAF was involved in an acci- 
dent which caused the death of a passenger, a Canadian officer, the court 
held, reversing the Cour d'Appel de Paris, that where France had waived 
its primary jurisdiction and the United States authorities had, after a 
thorough investigation, determined not to try the accused, a joint criminal- 
civil action by the widow of the victim was barred. It can be argued that the 
same rule should apply where a state has the primary right to proceed by 
the Agreement. A waiver is, however, an affirmative act, and the language 
of Art. VII 3(c) is "If the State having the primary right decides not to 
exercise jurisdiction," language apt for expressing the idea of final rather 
than temporary surrender. 



195 

Philippines Agreement in effect to a degree does — has real merit. 
The line need not mark a complete break, completely excluding 
the utilization of the concept where the offense is off -base. Where, 
however, the offense is both inter se and on-base, it can be looked 
upon as one within the military community, which is separate 
enough so that an inter se offense committed there does not 
seriously disturb the "peace of the port." 28 The parenthetical 
clause in the definition of "United States interest offense" in the 
revised Leased Bases Agreement, "excluding the general interest 
of the Government of the Territory in the maintenance of law 
and order therein" suggests the added interests, other than the 
protection of the territorial state's nationals, which lie behind 
the territorial principle. It is significant that the receiving state 
was prepared expressly to waive those interests in an agreement 
which limited the reach of the inter se concept to on-base offenses. 
The significance accorded the inter se concept in status of 
forces agreements is perhaps surprising in view of the limited 
significance given to it in the traditional analysis of the bases of 
jurisdiction. The allocation of jurisdiction over merchant sea- 
men with respect to offenses committed on board ship in a 
foreign port does, however, provide a precedent. The actual 
practice of states with respect to offenses by the crews of war- 
ships on shore furnishes another. Much comment suggests, more- 
over, that much greater importance is in fact attached to the 
status of the victim than to the place of the offense. It may well 
be that the territorial principle owes much more to the fact that 
the victim is usually a national of the territorial state than is 
commonly assumed. In any case, the inter se concept seems 
clearly to be an acceptable basis for according a limited im- 



28 A most interesting provision reflecting these ideas is that in Procedural 
Agreement No. 16 to the 26 September 1953 Agreements with Spain. Para- 
graph 7 reads: "Whenever a member of the United States Forces commits 
an offense solely against the property of the United States or solely against 
the property or person of another member of the United States Forces and 
the offense is committed on a military reservation in an area which is under 
the control of a United States 'Commander,' the offender will, if he is 
apprehended by Spanish military police, immediately be turned over into the 
custody of United States military authorities for disciplinary action. No 
report of the offense will be made to the Mixed Commission or Jurisdiction 
and the United States 'Commander's' disposition of the case shall be final 
and binding on all concerned * *." 



196 

munity from the jurisdiction of the receiving state to visiting 
armed forces. 29 



29 Section 62 of the Restatement, Foreign Relations Law, p. 194, states 

that "(1) Except as otherwise expressly indicated by the territorial state, 

its consenting to the presence of a foreign force within its territory * * * 

implies that it agrees that the sending state shall have the prior right to 

exercise enforcement within the territory over members of the force with 

respect to 

******** 

(b) an offense committed by a member of the force that affects only the 
force or its members and does not involve the public order of the terri- 
torial state." 

See also Comment d to Section 62 at 195. 

The position taken seems eminently reasonable, but it may be doubted that 
there is any established rule to this effect. 






CHAPTER X 
ON-BASE OFFENSES 

The concept of the "base," * although it finds no place in the 
NATO Agreement, has been widely used in other status of forces 
agreements. It has a longer history than the inter se concept. 

Oppenheim 2 was the most influential among a significant 
minority of text writers 3 who took the position that visiting 



1 The word "base" seems more appropriate under modern conditions than 
the word "camp," commonly used in earlier discussions. As used here, it is 
intended to cover areas of all kinds set apart for the exclusive or primary 
use of the visiting forces. 

2 His much quoted statement was : 

"Whenever armed forces are on foreign territory in the service of 
their home State, they are considered exterritorial and remain, there- 
fore, under its jurisdiction. A crime committed on foreign territory 
by a member of these forces cannot be punished by the local civil or 
military authorities, but only by the commanding officer of the force 
or by other authorities of their own State. This rule, however, applies 
only in case the crime is committed either within the place where the 
force is stationed or in some place where the criminal was on duty; it 
does not apply, if, for example, soldiers belonging to a foreign garrison 
of a fortress leave the rayon of the fortress not on duty but for recrea- 
tion and pleasure and then and there commit a crime. The local au- 
thorities are in that case competent to punish them." 1 Oppenheim, 
International Law 759 (7th ed., Lauterpacht, 1948). 

However, in the latest, eighth edition, the editor notes that this is the view 
of some only; and that "* * * the view which has the support of the bulk 
of practice is that in principle members of visiting forces are subject to the 
criminal jurisdiction of local courts, and that any derogations from that 
principle require specific agreement of the local State by treaty or other- 
wise." 1 Oppenheim, International Law 848 (8th ed., Lauterpacht, 1955). 
Oppenheim's view was expressly rejected by Cassels, J. in Rex v. Nauratil, 
England, High Court, Warwick Assizes, March 11, 1942, upholding British 
jurisdiction where the defendant was a Czech sergeant, the victim a Czech 
subject, and the offence occurred in the barrack-room. [1919-1942] Ann. Dig. 
(Supp. Vol.) 161 (No. 85). 

8 "Such a concession should always be considered as an act of comity, and 
ought to be harmonized with the security and tranquility of the state, in 



198 

forces were immune from local criminal jurisdiction with respect 
to offenses committed within but not outside their quarters or 
camps. A related position was taken in the Bustamante Code. 4 

In so far as the immunity of visiting forces for on-base offenses 
was explained through the fiction of extraterritoriality — and with 
some, including Oppenheim, the fiction appears to have been a 



such fashion, always, that the organization of the army and military dis- 
cipline are not imperiled. 

"It is clear that the territorial sovereign implicitly renounces jurisdic- 
tion over the places occupied by the army during the time it is quartered 
there, and that also, in that which concerns military offenses and offenses 
de droit commun committed within the perimeter of the camp, the jurisdic- 
tion of the state to which the army belongs should prevail. The reason 
is that the state exists morally where the military power which represents 
it is found, and that the concession on the part of the other state implies in 
fact the temporary suspension of the exercise of jurisdiction over the terri- 
tory occupied by the army. 

"It ought, on the other hand, to be true that persons who belong to the 
army fall under the jurisdiction of the territorial sovereign, if they com- 
mitted in isolation, and outside the perimeter where the army is quartered, 
acts which concern laws of police and territorial security. It is beyond 
doubt that in this case the territorial sovereign has the right to judge such 
persons, because it has not abandoned its rights of jurisdiction in that which 
concerns the individuals who compose the army, uti singuli, but in that 
which concerns the army, uti universitas." 1 Fiore, Nouveau Droit Inter- 
national Public 468-469 (Antoine trans., 2d ed., 1885). See also Fiore, 
International Law Codified 220-221 (5th ed., Borchard trans., 1918). 

"In the absence of special agreement the troops would not be amenable 
to the local law, but would be under the jurisdiction of their own com- 
manders, as long as they remained within their own lines or were away on 
duty, but not otherwise." Lawrence, The Principles of International Law 
225 (7th ed. 1925). 

* Article 299 of the Bustamante Code, annexed to the Convention on Pri- 
vate International Law, Final Act of the Sixth International Conference 
of American States, 1928, at 16, provided: "Nor are the penal laws of a 
State applicable to offenses committed en el perimetro de las operaciones 
militares, when it authorizes the passage through its territory of an army 
of another contracting State, save when they have no legal relation with 
that army." Barton states, 1954 Brit. Yb. InVl L. 344, that the article was 
based on Article 140 of a prior draft Code, the work of Pessoa, and ap- 
proved by a subcommittee of the Committee of Jurists of the Pan-American 
Union at Rio de Janeiro in 1912, which used the phrase "en el recinto del 
campamento," rather than "en el perimetro de las operaciones militares," 
and would have accorded immunity from local jurisdiction with respect to 
all offenses committed in that area except those committed by one local 
citizen against another. 



199 

factor — it has lost its footing. 5 Rejection of that fiction in the 
case of embassies has led to the conclusion that there is no im- 
munity for offenses committed there. 6 If one accepts the sugges- 
tion that embassies and bases are entirely analogous, the conclu- 
sion would follow that there was no immunity for on-base 
offenses. It can be said, however, that military exigency requires 
granting immunity to an armed force, if not to the individuals 
who compose it, when it has the character of an organized body 
of men, and it has that character on a base. The analogy, it can 
be argued, is much closer to that of the crew of a warship while 
on board than to the staff of an embassy. 7 The base may, more- 
over, constitute a community apart, at least to a degree, from the 
community of the receiving state. 

Advocates of both complete immunity and of no immunity for 
visiting forces have criticized the intermediate position, granting 
immunity only for "on-base" offenses. They object that, al- 
though immunity for "on-base" offenses may have made sense 
when visiting forces garrisoned a fortress, 8 it does not under 



6 Both Barton, 1954 Brit. Yb. Int'l L. 349, who rejects the fiction, and the 
U.S. Memorandum, which refers to it with seeming approval as one of the 
bases for complete immunity, Hearings Before the House Committee on 
Foreign Affairs on H.J. Res. 309, Part I, 84th Cong., 1st Sess., 417 (1955), 
point out that a consistent application of the fiction would not result in 
according immunity only for the acts of visiting forces in their camps. 
Barton points out that it would logically give immunity to any person who 
committed an offense in a camp. Both Barton and the Memorandum state it 
would require according immunity to a soldier wherever he was, on what 
Barton refers to as a "walking island" theory — a much more dubious 
proposition. 

6 "The ground occupied by an embassy is not the territory of the foreign 
State. * * * The lawfulness or unlawfulness of acts there committed is deter- 
mined by the territorial sovereign. If an attache commits an offense within 
the precincts of an embassy, his immunity from prosecution is not because 
he has not violated the local law, but rather for the reason that the in- 
dividual is exempt from prosecution. If a person not so exempt, or whose 
immunity is waived, similarly commits a crime therein, the territorial 
sovereign, if it secures custody of the offender, may subject him to prosecu- 
tion, even though its criminal code normally does not contemplate the 
punishment of one who commits an offense outside of the national domain." 
2 Hyde, International Law 1285-86 (2d ed. 1948). 

7 Ministere Public v. Tsoukharis, Egypt, Mixed Court of Cassation, Feb. 
8, 1943, [1943-1945] Ann. Dig. 150 (No. 40) ; Chung Chi Cheung v. The 
King [1939] A.C. 160 (P.C.). See Fiore, op. cit. supra, note 3. 

8 "This supposed rule of place * * * probably arose out of the garrisoning 



200 

modern conditions of total war 9 and is too vague and indefinite 
to permit practical application. 10 

There is weight to these objections, and in any event Oppen- 
heim's position never achieved such wide acceptance as to give 
it the status of a rule of international law. 11 There is, however, a 

of troops in places particularly limited or denned by agreement. These 
garrisons were admitted for the protection of weak states, or to assure the 
carrying out of some treaty provisions or other obligation. Of course, in 
such a case, the military authorities would not have exterritorial jurisdic- 
tion over their forces outside of the area denned, since such forces would 
not have the consent of the local sovereign to be outside of such area." U.S. 
Memorandum, Hearings on H.J. Res. 309, op. cit. supra, note 5, at 416. 

•Barton, 1952 Brit. Yb. Int'l L. 12; King, 36 A.J.I.L. 559 (1942); U.S. 
Memorandum, Hearings on H.J. Res. 309, op. cit. supra, note 5, at 416; 
Canadian Factum, id., p. 431. 

10 U.S. Memorandum, Hearings on H.J. Res. 309, op. cit. supra, note 5, at 
416; Canadian Factum, id., at 431. Barton notes the argument, 1954 Brit. 
Yb. Int'l L. 350, that permission to occupy an area may be considered an 
implied grant of the exclusive right to exercise jurisdiction over offenses 
committed within the area by the visiting forces, and concludes "When 
the grant of an area * * * actually amounts to a lease or an occupation 
license, there may be strong arguments in favour of the view that the writ 
of the local sovereign does not run within that area. Agreements relating 
to the peaceful military occupation of territory would seem to support such 
arguments. But where the grant of an area for the use of the visiting 
forces falls short of such a disposition of territory, there would appear to 
be no justification for concluding that the juridical consequences of an 
intra-castral offence committed by a member of a visiting force differ from 
those of any other offence. The absence of this distinction, as a test for 
determining whether jurisdiction ought to be exercised, from all the jurisdic- 
tional agreements concluded during the Second World War, and, of even 
greater significance, from the multilateral agreements concluded within the 
last ten years, may, it seems, be acceptable as cogent evidence not only 
that the differentiation has no place in international law, but also that 
it has no utility in practice." 

That the form employed in making an area available for occupation by 
visiting forces can be described as a lease or license may not be irrelevant, 
but other factors more directly related to the interests of the states con- 
cerned and to the recognized bases of jurisdiction and of immunities, appear 
entitled to greater weight. 

11 It will be recalled that Oppenheim's position appears largely to have 
shaped the British attitude in the World War I Anglo-American negotia- 
tions, and again in World War II. 

The Mixed Courts of Egypt were prepared to recognize an immunity so 
limited, seemingly influenced in part by the analogy of warships and their 
crews. See Manuel v. Ministere Public, Court of Cassation [1943-1945] Ann. 
Dig., No. 42; Suclozav v. Ministere Public, Journal des Tribunaux Mixtes, 



201 

wide gulf between saying that international law does not and 
should not accord exclusive jurisdiction to a sending state for 
on-base offenses, and saying that the concept of a base "has no 
utility in practice." On the contrary, there is much reason for 
saying that the difference between the situation on and off a 
base is significant enough to justify a different allocation of 
jurisdiction over offenses committed on and those committed off 
a base. The difference need not be between exclusive jurisdic- 
tion in the sending state for on-base offenses and in the receiving 
state for off -base offenses. 

The appropriateness of utilizing the concept of a base in allo- 
cating jurisdiction has been recognized in a significant number of 
status of forces agreements. The United States, early in the 
century, by treaty acquired with respect to the Canal Zone 12 

August 24-25, 1945, No. 3504, p. 3. Judge Brinton notes that "The claim [of 
complete immunity] was rejected in favor of the principle which limits 
exemption to offenses committed within military precincts or while the mem- 
bers of the forces were engaged in the execution of a military duty." "The 
Egyptian Mixed Courts and Foreign Armed Forces," 40 A.J.I.L. 737, 739 
(1946). Barton suggests, 1954 Brit. Yb. Int'l L. 346, that this seeming 
willingness to recognize the limited immunity may have been prompted by an 
"assimilation of the camps of the other foreign forces stationed in Egypt" to 
the British camps, covered by the Anglo-Egyptian Convention of August 26, 
1936, U.K.T.S., No. 6 (1937). The Convention provided in Article 5 that 
"Without prejudice to the fact that British camps are Egyptian territory, 
the said camps shall be inviolable and shall be subject to the exclusive con- 
trol and authority of the Appropriate British Authority." The Mixed Court, 
however, had no difficulty in distinguishing between the status of the forces 
of other countries and British forces with respect to offenses committed out- 
side camps, and the immunity of the British forces with respect to such 
offenses stems from the same treaty. 

On the other hand, several of the early cases which came before the 
Mixed Court involved sailors from warships in Egyptian harbors, and the 
analogy may well have suggested itself. Barton, supra, at 347. 

Colonel King vigorously criticized the decisions of the Mixed Courts on the 
ground, among others, that they "applied to land troops a resolution relating 
only to naval forces." 40 A.J.I.L. 260 (1946). 

12 The Convention of February 26, 1904 with Panama, 2 Malloy, Treaties, 
etc., 1349 (1910), provided in Article III that "The Republic of Panama 
grants to the United States all the rights, power and authority within the 
zone * * * which the United States would possess and exercise if it were 
the sovereign of the territory within which said lands and water are 
located to the entire exclusion of the exercise by the Republic of Panama 
of any such sovereign rights, power or authority." 

The Convention also granted the United States certain rights outside the 



202 

and sites for naval bases in Cuba (Guantanamo Bay) 13 and 
Nicaragua, 14 exclusive jurisdiction not only over offenses com- 
mitted by its forces, but over all offenses committed in the 
designated areas. None of these agreements contained any ex- 
press provision regarding offenses committed by American forces 
outside the designated areas, and it is understood that the United 
States does not claim exclusive jurisdiction with respect to such 
offenses. 15 

More important, the first of the World War II agreements on 
jurisdiction, the Anglo-American agreement of March 27, 1941 
relating to the Leased Bases, in significant degree made jurisdic- 
tion depend on whether the offense occurred within or without a 
Leased Area. With respect to American troops, and the civilian 
component, the United States was given primary jurisdiction over 
security offenses, and offenses within a Leased Area ; it had only 
concurrent jurisdiction over other offenses. 16 When the Leased 



Zone, including, in Article VII, the "right and authority * * * for the 
maintenance of public order in the cities of Panama and Colon and the 
territories and harbors adjacent thereto in case the Republic of Panama 
should not be, in the judgment of the United States, able to maintain such 
order," and in Article XXIII the right to use its police and its land and 
naval forces for the safety and protection of the Canal if it should become 
necessary. Article XVI contemplated the making of arrangements for 
delivery to Panama of persons who committed offenses outside the Zone and 
were found in the Zone. 

18 The Agreement of February 23, 1903, 1 Malloy, Treaties, etc., 359 
(1910) provided in Article III: 

"While on the one hand the United States recognizes the continuance 
of the ultimate sovereignty of the Republic of Cuba over the above 
described areas of land and water, on the other hand the Republic of 
Cuba consents that during the period of the occupation by the United 
States of said areas * * * the United States shall exercise complete 
jurisdiction and control over and within said areas * * *." 
The Lease of July 2, 1903, id., at 360, provided in Article 4 for delivery 
of fugitives from justice charged with crimes or misdemeanors against 
Cuban law who took refuge within the areas. 

"See the Canal Convention of August 5, 1914, (Art. 2) 39 Stat. 1661. 
No base was established pursuant to the rights granted by the treaty. 

15 See the statement of General Hickman, infra, page 218, note 13. 

16 Article IV provided in part that in any case in which "(B) A British 
subject shall be charged with having committed any such [security] offence 
within a leased area and shall be apprehended therein; or (C) A person 
other than a British subject shall be charged with having committed an 
offence of any other nature within a leased area, the United States shall 



203 

Bases agreement was revised in 1950, whether an offense oc- 
curred within or without a leased area was again taken into 
account in allocating jurisdiction. 17 

have the absolute right in the first instance to assume and exercise jurisdic- 
tion with respect to such offence." 

The phrase "A person other than a British subject" included a member 
of the American forces, and since the agreement did not expressly state who 
should have jurisdiction over offenses off a leased area, the implication was 
clear that jurisdiction over such offenses was to be concurrent. 

Another World War II agreement, that of March 31, 1942 with Liberia, 
23 UNTS 302 (1948-49), gave the United States exclusive jurisdiction over 
offenses committed by others than Liberian nationals on the airports and 
other defense areas established in Liberia. It also granted exclusive jurisdic- 
tion to the United States over United States military and civilian personnel 
and their families for offenses outside the defense areas. 

Article 2 provided : 

"The Republic of Liberia retains sovereignty over all such airports, 
fortifications and other defense areas as may be established under the rights 
above granted. The Government of the United States during the life of this 
Agreement shall have exclusive jurisdiction over any such airports and de- 
fense areas in Liberia and over the military and civilian personnel of the 
Government of the United States and their families within the airports, 
fortifications and other defense areas, as well as over all other persons 
within such areas except Liberian citizens. 

"It is understood, however, that the Government of the United States may 
turn over to the Liberian authorities for trial and punishment any person 
committing an offense in such defense areas. And the Liberian authorities 
will turn over to the United States authorities for trial and punishment any 
of the United States military or civilian personnel and their families who 
may commit offenses outside such defense areas. The Liberian authorities 
and the United States authorities will take adequate measures to insure the 
prosecution and punishment in cases of conviction of all such offenders, it 
being understood that the relevant evidence shall be furnished reciprocally 
to the two authorities." 

17 The United States is by Article IV (1) given: 

"(a) Where the accused is a member of a United States force, 

******* 

(ii) if a state of war does not exist, exclusive jurisdiction over security 
offences wherever committed and United States interest offenses committed 
inside the Leased Areas; concurrent jurisdiction over all other offenses 
wherever committed. 

******* 

(c) Where the accused is not a member of a United States force, a 
British subject or a local alien, but is a person subject to United States 
military or naval law, 

******* 

(ii) if a state of war does not exist and there is no civil court of the 



204 

The Agreement of March 17, 1947 with the Philippines gives 
the United States the right to use certain bases in the Philippines. 
The provisions of the Agreement on jurisdiction 18 give much 
greater reach to the on-base concept than the revised Leased 
Bases Agreements. The United States has jurisdiction 19 over 
all offenses committed on a base, by and against whomever they 
may be committed "except where the offender and offended 
parties are both Philippine citizens (not members of the armed 
forces of the United States on active duty) or the offense is 
against the security of the Philippines." United States jurisdic- 
tion, in other words, reaches beyond the furthest point to which 
the inter se concept can carry — an offense by a member of the 
armed forces, the civilian component or a dependent against a 
person in any of those groups — to include both an offense by a 
person in any of those groups against a stranger to the American 
forces, including a Philippine citizen, whether committed in the 



United States sitting in the Territory, exclusive jurisdiction over security 
offenses which are not punishable under the law of the Territory, concurrent 
jurisdiction over all other offenses committed inside the Leased Areas." 

Other provisions, e.g., Article IV (l)(b), (l)(c), iii, 1(d), as well as 
those relating to jurisdiction in time of war also distinguish between offenses 
committed within and without a leased area. 

The Agreement relating to the Bahama Islands Long Range Proving 
Ground, contains almost identical provisions. 

The Leased Bases Agreement was modified by an Exchange of Notes of 
February 13, 1952 and March 14, 1952 between the United States and 
Canada, 3 UST 4271 (1952), with respect to the bases in Newfoundland. 
Subsequently, by an Exchange of Notes of April 28, 1952 and April 30, 1952 
between the United States and Canada, 5 UST 2139, TIAS 3074, 235 
U.N.T.S. 270 (1956), it was agreed that the NATO Status of Forces Agree- 
ment should be made applicable to all United States forces in Canada, the 
United States Note stating that "Both the United States Government and 
the Canadian Government agree that uniform treatment of United States 
forces throughout Canada under the NATO Status of Forces Agreement 
would be in the interest of both countries and would make for simplification 
of administration. 

18 Article XIII. The United States personnel employed in the military 
assistance program in the Philippines under the Agreement of March 21, 
1947 for military assistance, 45 U.N.T.S. 47 (1949-50) and 70 U.N.T.S. 280 
(1950) are by an Exchange of Notes of February 24, March 11 and 13, 
1950, 82 U.N.T.S. 332 (1951), given "the privileges and immunities accorded 
to accredited United States personnel of that Embassy." 

19 Interpreted, in People v. Acierto, Philippines, Sup. Ct., Jan. 30, 1953, 
Int. L. Rep. 1953, 148 as only "prior or preferential but not exclusive." 



205 

performance of duty or not and, nominally, by a stranger to the 
American forces, including a Philippine citizen, against a person 
in any of those groups. 

The jurisdiction of the United States with respect to off -base 
offenses is, on the other hand, very limited. 20 It embraces only 
(1) the narrowest range of inter se offenses, i.e., those in which 
both the offender and the victim are members of the armed 
forces; (2) security offenses; and (3) offenses committed by a 
member of the armed forces (not the civilian component) "while 
engaged in the actual performance of a specific military duty." 

There has been much objection on the Philippine side to the 
provisions regarding jurisdiction over on-base offenses. Negotia- 
tions for the revision of the Agreement have been going on in- 
termittently since 1956. A resolution of the Philippine Senate in 
March 1959 asked for Philippine jurisdiction over all cases 
arising on the bases, but recognized there might be justifiable 
exceptions. 21 It may be assumed that the Philippines' concern is 
primarily due to the fact that the United States has exclusive 
jurisdiction over off-duty offenses by Americans against Philip- 
pine citizens, and, nominally, over offenses by others than Ameri- 
cans, committed on the bases. It was reported that the United 
States was prepared to accede to the Philippines' position on these 
points, but a second issue — who should determine whether an 
offense was committed in the performance of duty — was not re- 
solved. 22 

The Agreement with the Dominican Republic of November 26, 
1951, which related to the Long Range Proving Ground, re- 
sembled the Philippines Agreement in its allocation of jurisdic- 



80 The Agreement contemplates that the local fiscal (prosecuting attorney) 
may waive the jurisdiction reserved to the Philippines "over all other offenses 
committed outside the bases by any member of the armed forces," and if he 
does so the United States is free to exercise jurisdiction. Article XIII, 4. 
21 The resolution, as published in the Manila press on March 22, 1959, 
asked in part for : 

"2. Application of the laws of the Philippines in the military bases. 
"3. Jurisdiction of Philippine courts over all cases arising in the 
military bases, including criminal offenses committed by military per- 
sonnel in violation of Philippine laws, and if justifiable exceptions are 
recognized, the final determination of whether a particular case is within 
the exception must rest in Philippine authorities." 
" The New York Times, May 10, 1959, p. 25, col. 3. 



206 

tion with respect to on-base offenses. 23 The exclusive jurisdiction 
granted the United States was narrower in that it extended only 
to those subject to United States military law, but when one sub- 
ject to that law committed an offense on a Site, the nationality of 
the victim and whether the offense was committed in the per- 
formance of duty were irrelevant. The exclusive jurisdiction 
granted the United States over off-base offenses was, however, 
much more extensive than under the Philippines Agreement. It 
had such jurisdiction except where the victim was a Dominican 
national or local alien; in the excepted cases, the Mixed Military 
Commission decided who should exercise jurisdiction. 

The Agreement with Libya of September 9, 1954 is like the 
Dominican Agreement in that exclusive American jurisdiction 
is limited to "members of the United States forces" but with re- 
spect to such persons extends to all offenses "committed solely 
within the agreed areas." With respect to jurisdiction over off- 
base offenses the Libyan Agreement is in form like the Philip- 
pines Agreement. The term "members of the United States 
forces" is, however, so broadly defined that every inter se offense, 
in the widest connotation of that term, and every offense com- 
mitted by any American in the performance of duty is subject 
to the exclusive jurisdiction of the United States. In substance, 
therefore, the Libyan Agreement more nearly parallels the 
Dominican Agreement with respect to off -base offenses also. 

The Agreement with Saudi Arabia concerning the Dhahran 
Airfield 24 comes nearest to allocating jurisdiction entirely in 
terms of the place of the offense. It grants the United States 
exclusive jurisdiction over offenses committed by United States 
military personnel (narrowly defined) within a prescribed area; 
Saudi Arabia has concurrent jurisdiction over offenses committed 
outside that area. The Agreement is unusual, however, in that 
the prescribed area includes not only the base but also certain 
described areas outside the base. It is understood that these 
areas comprise all those to which United States military person- 
nel may properly go, and no American soldier has ever been 
tried by a Saudi Arabian court. 

The Agreements cited which assign some role to the concept of 
a base in allocating jurisdiction by no means give it the same role. 



" Article XV. 

14 Par. 13, Exchange of Notes Between the United States and Saudi Arabia 
Concerning an Air Base at Dhahran, June 18, 1951. 2 UST 1466; TIAS 2290. 



207 

One would not expect they would, and the variations do not in- 
dicate that the concept has no proper role in allocating juris- 
diction. 

The term "base" has no single meaning, and many factors are 
relevant to the issue of whether, in any particular instance, a 
different allocation of jurisdiction over on-base and off -base 
offenses is appropriate. The base may be a naval base, an air 
base, a military headquarters or a housing area. The com- 
mander of the visiting forces may be in sole command on the 
base, or share command with an officer of the local forces. The 
visiting forces alone may occupy the base, or share it with a con- 
tingent of the local forces. The base may be physically separate 
from the surrounding area — even remote from any other in- 
habited area — or a building or only a part of a building in a city. 
Facilities may be built and the visiting forces supplied largely 
with materials and supplies brought from abroad, or the base may 
draw heavily on the local economy. Many, few or even no local 
inhabitants may be employed on the base. Likenesses or differ- 
ences in language, culture, race and religion, physical proximity 
and the availability of transportation facilities may encourage or 
discourage intermingling of the visiting forces and the local in- 
habitants. Many combinations of these factors can so set the 
base apart from the surrounding area as to justify a different 
treatment of the problem of criminal jurisdiction on and off 
the base. 

The above suggests, therefore, that a base — particularly one of 
the character of a naval or air base — is an integrated unit, an in- 
strumentality of the sending state, manned by an organized body 
of men, engaged in a common, coordinated effort, analogous to a 
warship. It can be said, then, that any exercise of jurisdiction by 
the local authorities within a base, or with respect to acts which 
occur within a base by those who man it, will in some degree in- 
terfere with the effective operation of the base. There is, then, a 
functional reason, more compelling than can be invoked with 
respect to offenses committed by a member of the armed forces 
when he is not on a base, for according the sending state exclu- 
sive jurisdiction over on-base offenses. 

The soundness of this approach can be better judged if one 
bears in mind that the concept of a base is material in other 
contexts. Also involved are such matters as the control of land, 
sea and air traffic to and in the area, control over the importa- 



208 

tion, sale and taxation of goods and materials, immigration, the 
applicability of local labor laws and many other matters which 
likewise bear on the effective operation of the base. 

Additionally, it can be said that those who man a base, par- 
ticularly if they are also housed there, constitute a more or less 
separate community, and offenses within that community do not 
disturb the "peace of the port. ,, It is useful in this regard to bear 
in mind the reasons of policy, rather than abstract principle, dis- 
cussed in the first chapter, which support the territorial principle. 
Broadly, they relate to the responsibility of the state for the wel- 
fare of those within its borders. To the extent that a base is a 
community apart, the responsibility and correlative concern of 
the receiving state is in fact diminished and that of the sending 
state increased. This in no way implies that the receiving state 
is not "sovereign" in the base area. The reference is to a 
sociological and not a political fact. 

It may be said that this simply restates the problem of the 
inter se offense, and there is no occasion to complicate that prob- 
lem by bringing in the matter of the place of the offense. It is 
submitted that the two concepts are, rather, correlative. There 
is a difference between an altercation between two members of a 
visiting force on a base, and between the same two men in a local 
pub. There is also a difference between an altercation between a 
member of a visiting force and a non-member on a base, and be- 
tween the same two men in a local pub. The inter se concept 
covers the first pair of these situations; if the offense is com- 
mitted on base, the on-base concept reinforces the inter se con- 
cept. 25 This concept does not cover the second pair of situations, 
but it can still be argued that if the accused is a member of the 
visiting force and the offense is committed on base, the sending 
state should have jurisdiction, even though the victim is not a 
member of the force and, presumably, is a national of the re- 
ceiving state. Nothing in Reid v. Covert 26 affects this situation, 
if the accused is a member of the armed forces rather than of 
the civilian component or a dependent. If, however, the accused 
is a non-member of the armed forces and particularly if he is also 



" It is with respect to offences which are both inter se and on base that 
the United States is given exclusive jurisdiction under Procedural Agree- 
ment No. 16 to the 26 September 1953 Agreements with Spain, Paragraph 
7, quoted supra p. 195, note 28. 

29 Supra, p. 157, note 2. 



209 

a national of the receiving state, the argument for allocating 
jurisdiction to the sending state merely because the offense oc- 
curred on base becomes very weak indeed, even if the victim 
was a member of the force. It also seems clear that a United 
States court-martial could not in any event try the accused. Reid 
v. Covert and its companion cases all arose under Article 2 (11) 
of the Uniform Code of Military Justice. Article 2 (12) makes 
subject to the Code "persons within an area leased by or other- 
wise reserved or acquired for the use of the United States which 
is under the control of the Secretary concerned * * *." 27 If a 
United States court-martial cannot try a member of the civilian 
component or a dependent, it can hardly try an alien who is 
neither. Nor would the fact that the offense occurred on a base 
appear to make a material difference. Such an extension of the 
Insular Cases 28 is not to be anticipated. 

The significance of the on-base concept for other purposes than 
those discussed here, e.g., on the right to exercise the power to 
police, will be taken up in a later chapter. 



27 70A Stat. 37, 10 U.S.C.A. 802. 

28 1 Willoughby, The Constitutional Law of the United States, c. xxxi (2d 
ed., 1929). 



CHAPTER XI 
DUTY-CONNECTED OFFENSES 

Duty-connected offenses are commonly classified into two 
general categories, those committed in the performance of duty 
and those committed while on duty but not in the performance of 
duty. The line between the two categories is more than a little 
blurred, and classifying a particular case as falling within one 
category or the other can be very difficult. Broadly speaking the 
distinction is, however, real enough, and the policy considerations 
relevant to the allocation of jurisdiction between sending and re- 
ceiving states are quite different for the two categories of cases. 

Immunity for offenses committed in the performance of duty is 
the most soundly based of all immunities claimed for visiting 
forces. 1 Its recognition has none the less met with vigorous re- 
sistance and, in individual cases, provoked controversies disrup- 
tive of orderly international relations. 

The Act of State doctrine does not, it is submitted, justify an 



x "[T]he only immunity which a member of the United States forces 
abroad could reasonably expect to obtain in the absence of agreement is for 
offenses which he might have committed in the line of duty * * *." Attorney 
General Brownell, Supp. Hearings Before Senate Committee on Foreign Rela- 
tions On Agreement Regarding Status of Forces of Parties to the North 
Atlantic Treaty, 83d Cong., 1st Sess., 73 (1953). 

Section 62 of the Restatement, Foreign Relations Law, p. 194, states: 
"(1) Except as otherwise expressly indicated by the territorial state, its 
consenting to the presence of a foreign force within its territory * * * im- 
plies that it agrees that the sending state shall have the prior right to 
exercise enforcement jurisdiction within the territory over members of the 
force with respect to 

(a) An offense committed by a member of the force in the performance 
of duty * * *." 

It should be noted that the Section speaks in terms of primary and 
secondary jurisdiction, and not of complete immunity. Comment b on Sub- 
section (1) sets forth at 194-195, the reason of policy supporting the posi- 
tion taken: "The exercise of primary jurisdiction by the territorial state 
over members of a force in such cases would interfere with the mission of 
the force and the effective maintenance of its discipline." 



212 

absolute immunity since the act is done in the territory of the re- 
ceiving state. That doctrine, since it derives from an abstract 
principle, is equally applicable to any representative of a state, 
however trivial his duties. Invoking so sweeping an immunity 
cannot be justified in every instance where the representative per- 
forms his duties in another state. 2 There may nevertheless be a 
sound functional basis for the immunity of members of the armed 
forces for acts in the performance of duty. 3 Exercising criminal 
jurisdiction over one who acts for a foreign state is intended to 
and can prevent him from acting. There is, then, a direct inter- 
ference with the conduct of the affairs and the advancement of the 
interests of a foreign state. If, in the specific instance, those in- 
terests are of sufficient moment — and where its armed forces are 
involved there is much reason to say this is always true — there is 
a strong case for according the immunity. Moreover, the member 
of the armed forces is placed in a dilemma: to act is to violate 
the law of the receiving state, not to act is to violate the mili- 
tary law of the state he serves. Superior orders may not be a 
defense when the act ordered is a violation of international law, 
but fairness suggests that it should be a defense where only the 
law of the receiving state is violated. This last argument loses 
some of its force, however, from the fact that superior orders is 



* Supra, pp. 32-41. 

• "If we were to examine the immunity of visiting forces in light of the 
general course taken by the law of immunities, we would be compelled to 
conclude that the immunity which is accorded to members of the armed forces 
as to offenses arising out of conduct in performance of official duty is like- 
wise based, in part at least, upon the functional principle. The concession 
of primary jurisdiction to the sending state is, in this aspect, a derivative 
of the sovereign immunity enjoyed by the state itself and has as its purpose 
the protection of the state against possible interference with its activities 
through the exercise of jurisdiction over those persons who serve it. The 
other function of the granting of primary jurisdiction to the sending state 
is to permit it to maintain discipline amongst those who are performing 
duties in its behalf. In these two respects, the immunity accorded by the 
Agreement is not for the protection of the individual but for the protection 
of his government. This explanation is not, however, wholly satisfactory in 
that a further reason for this right of jurisdiction in the sending state is 
that it would be unfair to the individual to expose him to criminal prosecu- 
tion by the receiving state for an act he had been ordered to perform by 
one acting on behalf of his own Government." R.R. Baxter, "Jurisdiction 
over Visiting Forces and the Development of International Law," 52 Am. 
Soc'y. Int. L. Proc. 174, 175 (1958). 






213 

not generally a defense when pleaded by a member of the Ameri- 
can 4 or British 5 armed forces accused of violating American 
or British law, respectively. 

Cases relating to the immunity of members of a visiting armed 
force for acts done in the performance of official duty are sparse 
and inconclusive. The famous case of People v. McLeod 6 denies 
immunity. McLeod was tried in New York for murder for his 
participation in the invasion of the United States by Canadian 
forces and their attack upon the Caroline, & vessel belonging to 
insurgents against the Canadian government. The decision was 
disavowed by the United States 7 and has been much criticized 
on the ground that what the defendant did, since it was in the 
course of actual military operations, was legal under the laws 
of war. Other American cases upholding immunity have relied on 



* See Ehrenzweig, Soldiers' Liability for Wrongs Committed on Duty, 30 
Cornell Law Quarterly 179, 201 (1944). The writer's conclusion is: — 

"The common law of military liability is applicable to members of the 
armed forces of the United States and to those militiamen whose states have 
not enacted immunity statutes. Older authorities rarely deviated from the 
stringent principle of full liability for illegal acts, with regard to either 
civil or criminal liability, whether such acts were committed under order or 
voluntarily, under ordinary conditions, or in emergencies. A more recent 
tendency seems to develop a rule of immunity for acts committed in good 
faith * * *. In derogation of the common law rule the militia statutes of 
most states have completely or partly immunized members of the militia for 
acts performed on duty." 

See also Roberts, Some Observations on the Case of Private Wadsworth, 
51 Am. L. Reg. 63, 161 (1903). 

6 Kenny's Outlines of Criminal Law 54 (Turner's ed., 1952). 
e 1 Hill 377, 25 Wend 483 (1841). 

7 The British minister asked McLeod's release on the ground the destruc- 
tion of the Caroline was a "public act of persons in Her Majesty's service, 
obeying the order of their superior authorities" which could "only be the 
subject of discussion between the two national Governments" and "could 
not justly be made the ground of legal proceedings in the United States 
against the persons concerned." Webster said in this case "That an in- 
dividual, forming part of a public force, and acting under the authority of 
his Government, is not to be held answerable as a private trespasser or 
malefactor, is a principle of public law * * *." Webster, Secretary of State, 
to Mr. Crittenden, Attorney General, March 15, 1841, 2 Moore, International 
Law Digest 24, et seq. (1906). For comment on the McLeod case, see 1 
Hyde, International Law 821 (1922) ; Jennings, The Caroline and McLeod 
Cases, 32 A.J.I.L. 82 (1939) ; Moore, Act of State in English Law, 126, et 
seq. Compare In re B.P.Z.S. and others, Court of Justice, Netherlands New 
Guinea, March 9, 1955, [1955] Int'l. L. Rep. 208. 



214 

this ground, 8 and Horn v. Mitchell can be read as meaning that 
this is the proper dividing line. 9 British text-writers have ac- 
cepted the limitation on the Act of State doctrine of Regina v. 
Lesley 10 and suggested that, with respect to members of the 



8 In Arce v. State, 83 Tex. Cr. R. 292, 202 S.W. 951 (1918), after General 
Pershing invaded Mexico, a force organized at Monterey by direction of the 
Carranza de facto government invaded Texas and fought a battle with two 
companies of American cavalry. Several were killed on both sides. Four 
Mexicans were captured and tried and convicted of murder. On appeal the 
court held that a state of war existed; that if any authority to punish the 
defendants existed, it was in the federal, not the state government; and 
that if the state court had jurisdiction, the conviction was erroneous be- 
cause the command was organized under the authority of the de facto 
government and the troops were required to obey the orders of their superior 
officers. 

In Straughan's Case, 1 Ct. of Claims Reports 324 (1863-1865), The 
Chesapeake, upon leaving Hampton Roads, was intercepted by a British 
squadron, which demanded permission to search The Chesapeake for de- 
serters. The demand was refused and the British squadron opened fire. 
The Chesapeake struck its colors and the British removed from The 
Chesapeake several seamen, including the husband of the claimant. The 
claim was for wages during the period of detention by the British under 
a statute the crucial clause of which referred to those "taken by an enemy." 
The British government had disavowed the act of the admiral commanding 
the squadron and offered payment for the injury to the seized seamen. 

A dictum of the court stated, at 328: "The acts of a naval commander, 
so far as other nations are concerned, are the acts of his government. His 
government is responsible for them, must answer for them, and must atone 
for them. There is no book or decision which calls such acts a private wrong, 
and the officer a wrongdoer. * * * Neither the United States nor the in- 
jured seaman could have prosecuted the captain and crew of the Leopard 
in criminal tribunals, nor have recovered damages from them in courts 
of law." 

"232 Fed. 819 (CCA 1, 1916). The rationale of the court's holding ap- 
pears, however, to be that there was insufficient evidence that petitioner's 
acts were authorized by the German government; that a commission as first 
lieutenant of the Landwehr (second reserve) Pioneers, dated August 18, 
1908, was inadequate in this regard. There is a suggestion also that for im- 
munity to exist the act must be "specifically authorized or avowed" by the 
government. 

10 26 Halsbury's Laws of England 253 (2nd ed. 1937), states that "The 
official acts of every state or potentate * * * and of their authorized agents, 
are acts of State. No action can be brought in respect of such acts, even 
when the agent is a British subject, and, in carrying out the act of State, 
is committing an offence against English law." A footnote states, however: 
"It is doubtful whether this rule applies to acts committed in British terri- 
tory by order of a foreign sovereign. There appears to be no direct English 



215 

armed forces, immunity for acts in the performance of duty ex- 
tends only to the "public and open employment of force" recog- 
nized by international law as "lawful in case of actual war." xl 

authority on the point (see, however, 1 Hale, P.C. 99), but in The People v. 
McLeod (1841), 1 Hill 377, the Supreme Court of New York held that the 
plea of 'act of State' afforded no defense to a British subject who com- 
mitted a criminal act in American territory. This decision was the subject 
of much comment, chiefly extra-judicial; Lord Lyndhurst, L. C, is said to 
have agreed with it * * * but the Governments of this country, and the 
United States expressed a contrary view * * *. R. v. Lesley, supra, to some 
extent supports it * * *." 

Dicey's Conflict of Laws, 164 (7th ed. 1958), states that "As regards 
acts of State authorized by foreign Governments * * * the courts in Eng- 
land would doubtless apply the same principle, at least in respect of acts 
committed outside England." A footnote states that "The position with re- 
gard to acts within the jurisdiction is uncertain; the Supreme Court of New 
York has held that in such circumstances a plea of act of State will not 
lie: The People v. McLeod (1941) 1 Hill 377. See R. v. Lesley (1860) 8 
Cox C.C. 269, which appears to be in the same sense." 

11 "The case for immunity has never been put higher than the public and 
open employment of force, and there the legitimate limits of act of States in 
this connection may lie. Perhaps a further limitation must be added — that the 
acts themselves must be of a kind which international law recognizes as 
lawful in case of actual war. It has been pointed out that English Courts 
certainly do not 'admit to its full extent the principle that we cannot sub- 
ject to our municipal laws aliens who violate such laws under the direction 
of their sovereign.' " Moore, Act of State in English Law 131 (1906) . 

The same author, in reviewing the factors to be taken into account in 
determining what is "matter of State," says "Secondly, there is the au- 
thority under which the acts are done, and the nature of the acts them- 
selves — whether the authority of the sovereign is the one thing needed, or 
whether that authority confers immunity only upon such acts as are of an 
obviously public character, and are lawful as between independent states; 
and whether, apart from authority given by a lawful sovereign, some acts 
are so essentially public in themselves as to be outside municipal jurisdic- 
tion. Thirdly, the place in which the acts are done may be material — 
whether in our own territory, or on the high seas, or in the territory of 
some foreign sovereign." 

Compare the statement of the Attorney-General, Sir Hartley Shawcross, 
in the House of Commons, March 10, 1948, quoted in 1 McNair, Interna- 
tional Law Opinions 115 (1956), with reference to the status of British 
forces in Palestine after the termination of the mandate: "It is the existing 
law that, where an action is brought by a foreign subject in respect of 
acts done by British soldiers or officials on foreign territory, which were 
done on behalf of the Government, or adopted by the Government after they 
were done, the defence of Act of State is a complete bar to any claim for 
damages that may be made. It also is the existing law, as a matter of in- 



216 

A general immunity for acts in the performance of duty, 
rather than one so limited, has, on the other hand, been recog- 
nized by the Supreme Court of Panama in Republic of Panama v. 
Schwartz fig er 12 and the Supreme Federal Court of Brazil in In 

ternational law, that, where we have Forces in occupation of foreign terri- 
tory, it is recognized that they are entitled to do that which is necessary 
for their own safety and protection, and that what they do in the course of 
these duties on foreign territory is not justiciable in the courts of this 
country or of any other country." 

See also Amrane v. John, Civil Tribunal of Alexandria, Egypt, Jan. 14, 
1932, [1931-1932], Ann. Dig. 174 (No. 90). 

"24 Panama, Registro Judicial 772 (1926), 21 A.J.I.L. 182 (1927). A 
workman at France Field, in the Zone, was severely injured. Schwartzfiger 
was ordered to rush the injured man to Colon Hospital in an ambulance. 
The ambulance, while being driven across Colon at a speed in excess of the 
legal limit, struck a business establishment and killed a man. The Supreme 
Court concluded the Panama courts had no jurisdiction. 

The case has been cited as holding that under international law visiting 
forces enjoy complete immunity from the jurisdiction of a country in which 
they are stationed. It seems clear, however, that the Supreme Court (1) 
considered that Panama was obligated by treaty to accord immunity to the 
accused, (2) viewed the case as involving troops in passage rather than 
stationed in the country and (3) adopted the view of the Procurador 
General that the fact that the accused was acting in discharge of his duty 
in driving the ambulance was crucial. Only in the opinion of the Proc- 
urador General is a general immunity of troops stationed in a country 
mentioned, and then only in a general discussion of the authorities. 

Assistant Attorney General Rankin commented regarding the wider in- 
terpretation sometimes given the Schwartzfiger and Gilbert cases : 

"The cases thus stand for the proposition that the only defense of 
immunity which has received sufficient recognition to be accorded any 
weight is where the offense occurred in the line of duty. They accord 
with the opinions of two of the most eminent international law au- 
thorities, Lawrence and Oppenheim who expressly limit the immunity 
to offenses committed in the line of duty or within the lines of the 
visiting forces (Lawrence, Principles of International Law (6th ed.) 
Sec. 107, p. 246; Oppenheim, 1 International Law (4th ed.) Sec. 445)." 
Hearings Before the House Committee on Foreign Affairs, On H.J. 
Res. 309, Part 1, 84th Cong., 1st Sess. 266-67 (1955). 

The Schwartzfiger case has not led in practice to the grant of a general 
immunity for American forces in Panama. 

"Pursuant to an informal agreement in 1943 between our military au- 
thorities and the commandant of the Panamanian National Police, military 
personnel who commit offenses within the Republic and who are appre- 
hended by the Panamanian authorities are frequently turned over to the 
United States authorities for disciplinary action. Local authorities, our 
authorities there, state that Panamanian authorities rarely refuse to re- 



217 

re Gilbert. 1 * 



linquish their primary jurisdiction when requested to do so." General Hick- 
man, Hearings Before the Subcommittee of the Senate Armed Services 
Committee On Operation of Article VII, NATO Status of Forces Treaty, 
84th Cong., 1st Sess., 38 (1955). But in the period from Dec. 1, 1958 to 
Nov. 30, 1959 Panama waived its jurisdiction in only 20 of 167 cases. Hear- 
ings Before the Subcommittee of the Senate Armed Services Committee On 
Operation of Article VII, NATO Status of Forces Treaty, 86th Cong., 2d 
Sess., (1960) 24. 

18 Brazil, Supreme Federal Court, November 22, 1944, Diario da Justice, 
August 21, 1945, section Jurisprudencia (appended to No. 190, pp. 2969- 
2972); [1946] Ann. Dig. 86 (No. 37). On February 18, 1944, a Brazilian 
citizen, Jose Domingues Ramos, tried to enter the Admiral Ingram Camp in 
Recife (Pernambuco) in order to obtain payment of a bill from an Ameri- 
can marine stationed there. This camp was a part of the American military 
bases temporarily established in Northern Brazil during the Second World 
War. The United States marine, Arthur James Gilbert, who was on guard 
at the entrance to the camp, sought to prevent Ramos from entering. 
Ramos persisted in his attempt and was shot by Gilbert; he died four 
days later. 

The court held the Brazilian courts had no jurisdicton. The opinions, like 
those in the Schwartz fig er case, ranged over a wide area, and it is not easy 
to pinpoint the basis for the decision. Again, however, on the facts the de- 
fense that the defendant's act was done in the performance of official duty 
was available, both opinions emphasize that aspect, and the decision is most 
clearly supportable on that ground. 

The Court, by Falcao, J., said in part, at pp. 87-88: 

"But in those cases the offences were common penal offences com- 
mitted by members of foreign armed forces who were present on 
Brazilian soil but were not on duty at the time. These circumstances 
necessarily led to the correct solution announced by the Government of 
the United States in response to the vigorous protest of the Brazilian 
representative. The present case, however, as appears from the pro- 
ceedings, is quite different: the offender is a member of the armed 
forces of a foreign country which are stationed within a limited zone 
of the Brazilian coast with the express consent of the Government of 
Brazil and for the purpose of taking part in war operations in which 
our country also is engaged. Furthermore, the said marine committed 
the offense in the exercise of his specific duty as sentry at the camp." 
Azevedo, J., in a separate opinion, observed that : 

"No question would arise if both the offender and the victim were 
members of the armed forces. As, however, the victim was a civilian, 
a distinction must be made: if the crime were devoid of any military 
aspect, the case would undoubtedly fall under the local jurisdiction. 
However, the case before the Court is of a typically military character. 
The act of the sentry who was guarding the camp was directed against 
a person who resisted the order not to enter it. In my view, the fact 
of the victim being a Brazilian civilian does not efface the pre- 



218 

The position that visiting forces are immune for offenses com- 
mitted in the performance of official duty is to be distinguished 
from the position that such forces are immune for offenses com- 
mitted while on duty. The latter concept predicates immunity on 
the time when an act is done, rather than the nature of the act. 
This is not to say there is no basis for immunity for acts com- 
mitted while on duty. Subjecting a member of a visiting force to 
criminal liability for a private act committed when he was on 
duty does not interfere directly with the conduct of the affairs 
of the sending state, nor call into question the propriety of an 
act of that state. It does, however, involve claiming jurisdiction 
over an individual when he is acting as an integral part of an 
organized body of men serving the foreign state. Indirectly, 
there is interference with the performance of his duty. The 
functional basis for immunity for private acts committed while 
on duty can be viewed as more substantial than for acts com- 
mitted on leave, but much less compelling than for acts committed 
in the performance of duty. 

Discussions of immunity for duty-connected offenses often fail 
to distinguish between offenses in the performance of duty and 
offenses on duty. This is understandable. There is, unhappily, no 

dominantly military character of the immediate defence of the camp's 
security." Id., at 90. 

Both opinions also appear to recognize the on-base concept, and there is 
language in each which suggests recognition of a wider immunity. 
A note to the report of the case in the Annual Digest reads : 

"For criticism of this decision see Accioly, "Conflito de jurisdicao em 
materia penal internacional," in Boletim da Sociedade Brazileira de 
Direito Internacional, I (1945), No. 2, pp. 96 ff. The author maintains 
that the crime was not military under international law; that it was 
not committed within the perimeter of the camp; that it represented an 
offence against a Brazilian citizen; that it took place in circumstances 
which would appear to have been a disturbance of the local public 
order; and that for these reasons the Supreme Federal Court was 
wrong in denying that Brazil had jurisdiction." 

General Hickman, in the Hearings Before the Subcommittee of the Senate 
Armed Services Committee On Operation of Article VII, NATO Status of 
Forces Treaty, 84th Cong., 1st Sess., 39 (1955), after stating that in Brazil 
jurisdiction over American troops is concurrent except for two special 
groups which enjoy diplomatic immunity, referred to the decision in In re 
Gilbert and said: "It is understood that Brazilian authorities have agreed, 
as a matter of policy, that United States military personnel who commit 
offenses in Brazil will be turned over to United States authorities for trial, 
and none of our people have been tried during the reporting period." 



219 

sharp line which distinguishes one from the other. Even if atten- 
tion is centered on the concept of offenses in the performance of 
duty, it is quite impossible to chart an acceptable perimeter. 
Limiting the concept to offenses expressly ordered will not suffice 
since there are acts the performance of which is inherent or im- 
plicit in every assigned duty. Nor can one easily draw a line 
between the normally acceptable way in which a duty should be 
performed and an abnormal, unacceptable way. An extreme 
deviation from the norm may readily be labeled a private act, 
but the middle ground presents real problems. Again, the deci- 
sion regarding where the line should be drawn is inevitably in- 
fluenced by the attitude taken toward how compelling a basis is 
necessary to justify giving immunity. Also, it is difficult to 
separate the issue from the related question of who is to deter- 
mine whether an act was done in the performance of duty, 
Finally, the draftsmen of agreements are handicapped by the in- 
adequacy of language to draw a sharp line. 

The view that visiting forces should enjoy immunity for acts 
committed while on duty was expressed by Oppenheim 14 and 
Lawrence. 15 It was developed primarily in the decisions of the 



1* "This rule, however, applies only in case the crime is committed either 
within the place where the force is stationed or in some place where the 
criminal was on duty." 1 Oppenheim, International Law 847-48 (8th ed., 
Lauterpacht, 1955). 

The U.S. Memorandum, Hearings, H.J. Res. 309, op. cit. supra, note 12, 
at 416, in arguing for general immunity for visiting forces, commented: 
"Oppenheim also suggests that if a crime is committed outside of the 
place where the force is stationed, the right of exterritoriality or im- 
munity from the local jurisdiction applies only in case the crime is 
committed 'in some place where the criminal was on duty'. Again there 
is no definition of 'on duty' although the example given suggests that a 
member of the armed forces while engaging in recreation or pleasure 
is 'not on duty'. A soldier is never off duty in the sense in which that 
term is usually understood by civilians. Even though temporarily per- 
mitted to absent himself from strictly military tasks for recreation and 
pleasure, he is still under the orders of his commanding officers and 
responsible to them for his acts. Common law crimes as well as 
ordinary breaches of discipline are military offenses for which he is 
responsible whether they are committed when he is under immediate 
command or not." 

With respect to the statement that "A soldier is never off duty * * *," 
see Manuel v. Minister e Public, note 16 infra, in which the argument was 
expressly rejected. 
16 "The troops * * * would be under the jurisdiction and control of their 



220 

Mixed Courts of Egypt, in terms of the concept of service com- 
Tnande. 16 The Mixed Courts came in time to doubt that the simple 

commanders as long as they remained within their own lines or were away 
on duty but not otherwise." The Principles of International Law 246 (6th 
ed. 1915). 

16 In the Triandafilou case, supra, involving a member of the crew of a 
warship, the court said : 

"Whereas, the sole question which presents itself * * * is that of 
knowing whether Triandafilou was or was not carrying out a mission 
under instructions at the moment when he committed the aggres- 
sion * * *. 

"Whereas the judgment * * * held that if Triandafilou came on shore 
to discharge a duty (purchase of food for the needs of the ship), and 
only with permission to return on board by midnight, he was no longer 
on duty when, coming out of a bar on the Place Mohammed Ali in a 
state of intoxication some minutes before midnight, he struck with a 
knife an agent of the local police * * *. 

"Whereas if the members of the crew of a warship enjoy the immunity 
from jurisdiction of the vessel itself when they are on shore this is only 
true in so far as they can be construed as agents for executing orders 
which are given them in the interests of the vessel ; whereas it is in short 
the immunity of the vessel which projects itself beyond the vessel for the 
realization of its own ends; whereas such is the basis of the principle 
which withdraws them from the local jurisdiction when they are on duty; 
whereas it follows that these words should be interpreted not with 
reference to the activities of him who has received the order but with 
reference to him who has given the order and must take cognizance of 
its execution ; and whereas in the instant case Triandafilou did not return 
on board to give an account of his commission, and whereas he was there- 
fore still on duty when he committed the aggression with which he was 
charged; whereas it results from these considerations that the first 
ground for the appeal is well granted * * *." 

The basis for the broad exception recognized in the Triandafilou case is 
better expressed in the opinion of the Court of Cassation in Ministere Public 
v. Tsoukharis, Feb. 8, 1943, [1943-1945] Ann. Dig. 150 (No. 40), a case in- 
volving a Greek soldier who had been ordered to go from Alamein to 
Amrich, instead went to Alexandria, and was involved with three other Greek 
soldiers in an affray in which a British corporal was killed. The court, 
after referring to its decision in Triandafilou, said : 

"The question arises whether the same rule applies to soldiers who 
leave their military quarters. The exception in favour of a sailor on 
shore on duty flows from the general principle of the jurisdictional im- 
munity of armed forces. This principle is based on the tacit under- 
standing to respect the sovereignty of a foreign Power, and should 
therefore, logically, be extended to apply to soldiers who, though out- 
side their military quarters, are regarded as forming an integral part 
of the corps to which they belong. They would be so regarded where 



221 

they are on duty under orders to carry out a mission for the needs 
of the corps." 

Shortly afterward, in Manuel v. Ministere Public, Court of Cassation, 
Mixed Court, March 8, 1943, 39 A.J.I.L. 349 (1945), the court said that 
"* * * there do not exist, in short, any serious divergences in the literature 
except as concerns violations of common law disturbing the public peace and 
security committed by a soldier outside of the military premises, either 
against an inhabitant or against other soldiers, on condition, moreover, that 
the offender is not on duty, for, in the latter case, he is considered as an 
integral part of the forces to which he belongs * * *." 

An armed force is, in other words, an instrumentality of a foreign state 
such that there is a functional basis for immunity for the individual 
soldier or sailor so long as he is a part of the force. He is a part of it when 
he is within a camp or on a warship, or when he is physically separated 
from the main body but still on duty. He is not when he is separated 
from the main body on leave. 

The Mixed Courts soon began to question whether this rationalization 
could support an immunity so broad in scope as that recognized in the 
Triandafilou case. They also began to doubt whether the certificate of the 
accused's commanding officer as to his on-duty status — counsel for the 
accused had relied on such a certificate in the Triandafilou case — should be 
considered as conclusive. 

The retreat began with the Tsoukharis case, supra, in which the accused 
Greek soldier, ordered to go from Alamein to Amrich, went to Alexandria 
instead. The Chambre du Conseil allowed the plea the accused was immune 
on the ground it had to accept the certificate of his commanding officer that 
Tsoukharis was on duty at the time of the offense. On appeal, counsel for 
the state argued that the decision involved an abdication of the court's func- 
tion to control the scope of jurisdictional immunities. (See Barton, 1954 
Brit. Yb. Int'l L. 340, 353). The Court of Cassation, in reversing and sending 
the case back on the ground the judgment appealed from did not state 
sufficiently the reason on which it was based, said : 

"The decision of the Chambre du Conseil has held that Constantin 
Tsoukharis was on duty, but has not specified this duty in a manner 
which would enable the Court to decide whether the Chambre du 
Conseil has properly applied the rules of public international law. 
'Mission under orders' means a mission dictated by military require- 
ments. It does not appear from the reasons given for the decision of 
the Court below that such a duty existed in the present case. Further- 
more, the order has to be looked at (as this Court has already held on 
June 29, 1942) from the point of view of the person who gives it 
and not from that of him who receives it. Applying this principle it 
seems clear that the person giving the order is interested in the report 
of the person sent, whereas the latter is interested in prolonging the 
duration of the mission. // therefore there is no report to make there is 
no order in question, and a soldier who abuses his mission to prolong 
his leave will cease to be covered by immunity from jurisdiction. In 



222 

fact that a soldier en service commands was "an integral part 
of the forces to which he belongs" furnished an adequate basis for 
immunity. They moved toward a more restricted view, but never 
wholly abandoned the idea that an offense "en service commande" 
was subject to the exclusive jurisdiction of the sending State. 17 

The rule developed by the Mixed Courts, according immunity 
for on-duty offenses, never enjoyed general acceptance, 18 nor has 
it found favor among treaty negotiators. It is not incorporated 
in the NATO Agreement. It was not rejected by the negotiators 
of that Agreement — an immunity for duty-connected offenses so 
broadly conceived was never proposed or discussed. 

More important, the NATO Agreement accords immunity even 
for offenses committed in the performance of duty only in limited 
degree. The sending state has primary, but not exclusive, juris- 
diction over "offenses arising out of any act or omission done in 
the performance of official duty." 19 Moreover, the receiving state 
may even have exclusive jurisdiction over such an offense in the 
event, probably unlikely, that it is "punishable by its law but not 
by the law of the sending state." 20 The limited immunity granted 
does, however, extend to the civilian component as well as to 
members of a force. 

There was vigorous opposition among the NATO negotiators 
to according even this limited immunity for offenses committed 
in the performance of duty. They were, of course, free to recog- 
nize an immunity for such acts in such degree as they chose, or 
deny it altogether, regardless of any rule of international law 
on the subject. 

Several representatives would have preferred to deny immunity 



order that the Court of Cassation should be able to exercise its power 
of judicial review it is essential that the alleged mission should be de- 
fined with due regard to the facts." (Emphasis added.) 

17 See the cases of Camboures, Cour d'Assises, Journal des Tribunax 
Mixter, 26/27 January 1944, p. 2; Gougoulis, Cour de Cassation, J.T.M. 
28-29 January 1944, p. 3; Scordalos, Cour de Cassation, J.T.M. 19/20 May 
1944, p. 2; Mijouicetal, Chambre du Conseil, J.T.M. 24/25 August 1945, p. 3. 

18 In the immediate post-World War II period, there were instances of 
American troops being tried by foreign courts for on-duty offenses. State- 
ment of the Department of State, Hearings Before the House Committee on 
Foreign Affairs on H.J. Res. 309, Part 2, 84th Cong., 2d Sess., 556 (1955). 

19 Article VII, para. 3 (a) (ii) . 
80 Article VII, para. 2(b). 



223 

for official acts altogether, 21 as did the Brussels Treaty. 22 Under 
that Treaty the receiving state was not even enjoined to give 
"greatest sympathy" to a request for "transfer," i.e., waiver, in 
such cases, as they were where an offense was inter se. This sug- 
gests the basis for opposition to the immunity. The argument 
that to exercise jurisdiction over visiting forces for offenses com- 
mitted in the performance of duty is to interfere with the con- 
duct of the affairs of a foreign state may be logically compelling. 
For some, this consideration is outweighed by their grave concern 
that the receiving state have jurisdiction in all cases in which 
the victim is a national of the receiving state. The point was not 
emphasized in this context in the NATO negotiations, 23 but was 
repeatedly made in relation to other issues. It was most vigor- 
ously pressed in the debates in the British Parliament. 24 The 



""The first point discussed was whether subparagraph [3(a)] (ii) should 
include offences committed in the performance of official duty. Several 
Representatives were of the opinion that they should be excluded." MS-R 
(51)14. The Portuguese representative had earlier put forward a redraft of 
the criminal jurisdiction articles which made no reference to an immunity 
for offenses committed in the performance of duty (MS-D(51)13) and 
thereafter proposed that paragraph 3(a) (ii) be omitted (MS-D(51)16). 

22 Page 145, supra. 

23 The Belgian representative "wished to reserve judgment [on the United 
States Draft] only with respect to cases where the victim of the offence 
was a national of the receiving State, even if the offence was committed by 
a member of an armed force on duty." MS- (J) -R( 51) 2. 

24 The statements made are to be read in the light of the fact that the 
Bill to implement the NATO Agreement, as introduced, apparently used the 
phrase "in the course of duty" rather than "in the performance of duty." 
The Home Secretary questioned that the difference in language was material, 
but agreed it should be changed. In the course of the debate Mr. Michael 
Stewart said : 

"I cannot understand on what principle anyone defends the proposi- 
tion that a foreign soldier who does some damage * * * to the citizens 
of the country which he is visiting should be exempt from answering 
for those offences in the courts of the country which he is visiting 
merely because it is alleged that what he did was done in the course of 
his duty." 505 H.C. Deb. (5th ser.) 599 (1952). See also the comment 
of Mr. John Strachey, id., at 578, comparing an immunity for inter se 
offenses to that for offenses in the course of duty. 
Mr. E. Fletcher moved an amendment to eliminate the clause relating to 

the immunity. He said, after referring with approval to the immunity for 

inter se offenses : 

"But the case is totally different where the offence is committed not 
against a foreigner or his country but against a British subject. It is 



224 

intensity with which this view may be held is illustrated by the 
feeling aroused in Japan by the Girard case. 25 One may surmise 
that it is the peripheral situation, such as the Girard case, rather 
than the case where the act was much more clearly in the per- 
formance of duty, which prompts such concern. 

The grant of immunity in the NATO Agreement for offenses 
committed in the performance of duty was apparently included 
at the insistence of the United States representative. He indi- 
cated that it would extend only to a limited range of cases. 26 

that class of case which is really causing the greatest concern among 
those who are troubled about this Bill. 

"Therefore I would like to exclude from Clause 3 any offence com- 
mitted against a British subject, even though it is committed in the 
course of duty by a member of a foreign force." 505 H.C. Deb. (5th 
ser.) 1158 (1952). See also a further comment by Mr. Stewart that 
"This is, I think, the only part of the Bill in which the power of the 
British courts to deal with the offence is set aside where the person 
suffering from the offence is a British subject." Id., at 1161. 

25 See p. 228, note 32, infra. 

26 The United States representative, in explaining the United States Draft, 
said that "The Draft provided that the Courts of the receiving State 
normally exercised jurisdiction." The United States draft however laid down 
two exceptions : 

"Article 6/2 (d). An offense against the laws of the receiving State arising 
out of an act done 'in the performance of official duty' by a member of a 
'contingent' or pursuant to a lawful order issued by competent authority. 
Very few categories of cases of this type would arise; examples would be 
sentinels using unnecessary force when on duty, or automobile accidents of 
drivers proceeding on official duty." MS-R(51)4. 

When at a later meeting, it was proposed that the clause according the 
immunity be eliminated (see note 21, supra) the United States representa- 
tive "pointed out, however, that there was a possibility of offences being 
committed in the performance of an official duty." MS-R(51)14. 

The Canadian representative, in MS-D(51)15, put forward a proposal that 
"for the existing words in Article VII, paragraph 3(a) (ii)" there should be 
substituted the clause "Acts or omissions done or omitted pursuant to an 
order issued by a military superior of the State and carried out according 
to the tenor thereof." He explained: "It would be most desirable to confer 
on a receiving State a primary right to exercise jurisdiction over a member 
of a force or civilian component who carried out his superior's order in an 
unlawful manner which resulted in injury or damage." 

The Canadian representative returned to the point later, proposing that 
the clause "should be expanded to include a further definition of offences 
arising out of any act or omission done in the performance of official duty, 
which would be worded as follows in French: *et rentrant dans l'ordre des 
devoirs de l'interesse'. The Working Group came to the conclusion that it 



225 

Several other representatives nevertheless sought further to limit 
the scope of the immunity, without success. 27 Concern was also 
expressed that the language in which the immunity was recog- 
nized was too ambiguous, but apparently no one put forward a 
more aptly phrased provision. 28 

It is not surprising, in view of the scanty record and the ad- 
mitted difficulties which the negotiators encountered in delineating 
the scope of the immunity they meant to confer, that disagree- 
ments have arisen regarding its application in specific cases. The 
Turkish authorities for a time took a most restricted view of the 
reach of the immunity. "It was argued that the killing of a 
pedestrain was not an act directly connected with the driving of 
a truck on official business, and that a person ordered to go to a 
place to perform certain duties and return was 'in line of duty' 
while he was performing those duties, but not on his return 



was very difficult first to find an equivalent expression in English and, 
secondly, to define the circumstances in which an offense could be regarded 
as falling within the limits of the duties of the person concerned. The 
point would chiefly arise in a few individual cases where special circum- 
stances were involved: an example had already been given * * * by the 
Italian representative (MS-R(51)14)." MS-R(51)18. 

" The Belgian representative proposed that the immunity should not cover 
traffic accidents. MS-R(51)8. 

The Italian representative proposed that "it should be specified that such 
act was done not only in the performance of official duty, but also but 
(sic) within the limits of such duty. He gave the example of a driver 
travelling between two towns on official business who, for personal reasons, 
deviated from the direct route. If an accident occurred in the course of the 
deviation, the driver was no longer acting within the limits of his official 
duty." MS-R(51)14. 

28 The French representative, at an early meeting of the Judicial Sub- 
committee, expressed approval of the United States draft, but thought "it 
would be necessary to define more closely the concept of a member of an 
armed force 'on duty.' " MS- (J) -R (51) 2. 

At a later meeting of the Working Group the Canadian representative 
proposed that in subparagraphs (1) and (11) the word "offences" should 
be replaced by the phrase "acts or omissions." "Several delegations also 
proposed further amendments [unspecified] to the definition of the offences 
appearing in subparagraph (11)." MS-R(51)14. 

The only changes made from the language used in the United States 
draft were (1) changing "act" to "act or omission" and (2) at the sugges- 
tion of the United States representative [MS-D(51)20], striking out the 
clause "or pursuant to a lawful order issued by the competent authorities 
of that State." MS-R(51)14. 



226 

trip." 29 The French and Italian authorities have, on the other 
hand, agreed that a member of the armed forces is in the per- 
formance of official duty when driving his own car between his 
home and his place of duty. 

The clause "offences arising out of any act or omission done in 
the performance of official duty" describes a class of acts. The 
test prescribed concerns the nature of the act, not the status of 
the actor. It is clear, then, that the clause does not cover all 
offenses committed while the offender was on duty. The more 
difficult question is what the nature of the act must be to fall 
within the class. The crucial point is the meaning to be given 
to the words "offences arising out of." The words could mean 
"offences consisting of" or the equivalent, in which event the 
immunity would extend only to acts or omissions done in the 
performance of official duty. It seems more sensible to interpret 
them as meaning "offences originating in," "related to," or, in 
the language of the Turkish statute, "done in connection with." 
This interpretation enlarges the class, but does not clearly define 
its outer limits. 

Those concerned with the interpretation of the clause have 
understandably reached into other areas of the law for assistance. 
The American military authorities have apparently interpreted 
the provision as analogous to but somewhat broader than the 
agency concept of "scope of employment." Much less useful is 
the analogy to "line of duty" used in the Federal Tort Claims Act 
and in legislation conferring benefits, narrowly interpreted in 



29 Snee and Pye, Status of Forces Agreements : Criminal Jurisdiction 49 
(1957). See also the testimony of General Hickman, Hearings Before the 
Subcommittee of Senate Armed Services Committee On Operation of 
Article VII, NATO Status of Forces Treaty, 84th Cong., 1st sess., 28 
(1955). The Turkish position, as has been said (Snee and Pye, ibid.) is in 
line with the Italian and Canadian proposals, supra, notes 27 and 28, which 
were rejected by the Working Group. 

Turkish legislation (Law No. 6816 of July 16, 1956) was enacted that 
the provision of the NATO Agreement was to apply to any "offense arising 
out of any act or omission done in the performance of duty or done in 
connection with the performance of duty," and this has enabled the Turkish 
and American authorities more readily to reach agreement in specific cases. 
The added language, "done in connection with the performance of duty," 
can be considered as a clarifying interpretation of the treaty provision, but 
not as extending its intended scope. See Snee and Pye, ibid., and the testi- 
mony of General Hickman, ibid. 



227 

the first case, broadly in the second. The French interpretation is 
apparently largely shaped by the concept of "en service com- 
mands"; the Italian authorities based their conclusion regarding 
the status of one driving between home and place of duty on the 
ground that he would have been considered at work under the 
Workmen's Compensation law. 30 

These analogies may be useful, but only within limits. Even 
with respect to the concept of "scope of employment," one can 
query whether the factors of policy which have shaped the limits 
of the vicarious liability of a principal for the acts of his agent 
are entirely relevant where the issue is not one of civil liability 
or even criminal liability but of criminal jurisdiction. The diver- 
gent interpretations of "line of duty" under the Federal Tort 
Claims Act and the Acts conferring benefits on members of the 
armed services suggest how irrelevant they are in interpreting 
the quite different language of the NATO Agreement, addressed 
to a quite different problem. There is need to remember that the 
problem under the Agreement is a new and unique problem, 
and that the language of the Agreement, "offenses arising out of 
any act or omission done in the performance of official duty," is 
new, and was a response to a particular need. That need was to 
ensure the commanding officer's control over members of a force 
in the carrying out of their duties, and hence to cast on the 
sending state the responsibility for the manner in which those 
duties are performed. If the act is not one which is or could be 
considered to be related to carrying out the mission of the force, 
it is not covered. This approach may not furnish a rule of thumb 
for the solution of the hard case; it is, however, likely to prove 
a surer guide than a concept drawn from another field, formulated 
to solve quite different problems. 31 Although this may suggest 



80 See, generally, Snee and Pye, op. cit. supra, note 29, at 47-50. 

81 Certain American military authorities in France have taken the position 
that if one of the elements of a crime is that it be done with a specific in- 
tent, the sending state cannot have primary jurisdiction, because the 
presence of the specific intent is inconsistent with the act being in the 
performance of military duty. Specifically, it was determined that, where 
one assigned to a Special Services unit who was to arrange tours for 
servicemen embezzled the money he collected instead of turning it over to 
the French bus company, the United States did not have primary jurisdic- 
tion because the intent to embezzle was inconsistent with his acting in line 
of duty. The provision of the Treaty, however, establishes a test for 



228 

that the class of cases over which the sending state has primary 
jurisdiction is relatively broad, one should bear in mind the 
issue is which state shall try and punish, not whether the 
offender shall be tried and punished. 

The Girard 32 case provoked the greatest controversy regard- 
ing the correct interpretation of the provision. Girard was under 
orders to guard a machine gun on a firing range being used by 
the American forces. A Japanese woman was collecting cartridge 
cases in the area. Girard placed a cartridge case in his grenade 
launcher, fired, and killed the woman. Either he did so to guard 
the machine gun, in which event he seemingly used excessive 
force, or did so as the climax to a bit of horseplay which involved 
enticing the victim and others within range and then frightening 
them by launching cartridge cases in their direction. 

The controversial issue was not whether Girard was guilty of a 
crime under Japanese or American law. Presumably he was un- 
der both, on either version of the facts. The issue was simply 
whether the United States or Japan had primary jurisdiction to 

allocating criminal jurisdiction, not a test of criminal liability. Moreover, 
it gives primary jurisdiction to the sending state of "offences arising out of 
acts or omissions done in the performance of official duty," and the words 
"arising out of" must be given due weight. Perhaps the intent with which 
an act was done would be relevant if the issue was whether the act was 
done in the performance of duty, but it seems questionable that it is 
relevant when the issue is whether it arose out of any act in the performance 
of duty. If, in the case cited, the accused had deposited the funds in a bank 
in his own name, this could be viewed as such a deviation as not to be in 
the performance of duty, but it still would seem to be an act arising out of 
an act done in the performance of duty, that is, collecting the money. It 
seems doubtful that it would be more or less so if the deposit was made 
with the intention of turning the money over to the bus company later, or 
diverting it to the accused's own use. 

In any event, there are certainly cases in which an act is done with the 
requisite intent and is nevertheless unquestionably one arising out of, or 
even directly in the performance of official duty. If, in In re Gilbert, supra, 
note 13, the sentry used excessive force, it would constitute such a case, 
and certainly many of the war crimes qualify. Introducing the test of the 
specific intent with which an act was done thus not only adds an element 
not expressly included in the NATO provision, but one which is clearly not 
applicable to all cases and is of questionable application in any case. The 
rejection of the Italian and Canadian proposals suggests the NATO 
negotiators did not intend to impose such an added test. See Snee and Pye, 
op. cit. supra, note 29, at 48-49. 

" Wilson v. Girard, 354 U.S. 524 (1957). 



229 

try him. The United States had such primary jurisdiction if what 
he did was an offense "arising out of any act or omission done in 
the performance of official duty"; Japan had such primary juris- 
diction if it was not. If he launched the cartridge case to guard 
the machine gun, then, however mistaken his judgment as to the 
appropriateness of employing such drastic means — even if he 
fired to kill — it seems clear that his act was within the provision. 
The Japanese contention, supported by reference to Agreed View 
No. 39, 33 which defined "official duty" as "any duty or service re- 
quired or authorized to be done by statute, regulation, the order 
of a superior or military usage," that the killing was not au- 
thorized, seems misconceived. As has been suggested, the issue 
was not whether Girard's act was done in the performance of 
official duty, as thus defined, but whether it was an offense 
"arising from" an act so done. 

If, on the other hand, Girard was engaged in horseplay, then 
his act was a private act, not arising from, related to, or origi- 
nating in the performance of his duty, and the United States did 
not have primary jurisdiction. 

Basically, then, the issue in the Girard case was one of fact, 
which, since the United States waived jurisdiction, was not re- 
solved. 34 

Our status of forces agreements vary in the recognition ac- 
corded the concept as a basis of immunity. It was pointed out 



83 Agreed to by the Criminal Panel, Jurisdiction Subcommittee on October 
29, 1953; FEC Pamphlet No. 27-1, Criminal Jurisdiction in Japan, January 
1956. 

The affidavit of Robert Dechert, General Counsel of the Department of 
Defense, offered in the Girard case and published in an appendix to the 
opinion of the Supreme Court, 354 U.S. 531, 542, states that a circular 
of the United States Army Forces, Far East, in January 1956, stated : 

"The term 'official duty' as used in Article XVII, Official Minutes, 
and the Agreed Views is not meant to include all acts by members of 
the armed forces and civilian components during periods while they are 
on duty, but is meant to apply only to acts which are required to be 
done as a function of those duties which the individuals are performing. 
Thus, a substantial departure from the acts a person is required to 
perform in a particular duty usually will indicate an act outside of his 
'official duty'." 

84 After extended discussions in the Joint Committee, the United States, 
on instructions from the Department of Defense, waived jurisdiction. See 
Appendix B to the Opinion of the Court in Wilson v. Girard, 354 U.S. 
544, at 547. 



230 

above that although the NATO Agreement gives primary juris- 
diction to the sending state over both inter se offenses and 
offenses in the performance of duty, the latter concession was 
made only with reluctance. Some, though not all, of the other 
status of forces agreements to which the United States is a party, 
reflect a similar attitude. 

The early Agreement relating to the Leased Bases did not refer 
specifically either to inter se or duty-connected offenses. 35 Juris- 
diction was in large part determined by the place of the offense. 
The United States had primary jurisdiction over most offenses 
committed by "other than a British subject," e.g., a member of 
the American forces or civilian component, if the offense was 
committed within a base, but only concurrent jurisdiction if it 
was committed outside a base. The issue of whether an offense 
was inter se or duty-connected was of no moment. 

The revised Leased Bases Agreement and the Bahamas Agree- 
ment both take account of whether an offense is a "United States 
interest" offense, as well as of the place where it occurs, but 
neither makes any reference to whether the offense was duty- 
connected. 36 If, in other words, a duty-connected offense is com- 
mitted against a British subject, the latter fact outweighs the 
former. 

The Agreement with the Dominican Republic was particularly 
interesting in this respect. Article XV gave the United States 
exclusive jurisdiction over offenses committed by members of its 
forces and others subject to its military law except Dominican 
nationals or local aliens, except with respect to offenses com- 
mitted outside the sites against a Dominican national or local 
alien. In the latter case, jurisdiction was concurrent, and the 
Mixed Military Commission was to decide which government 
should exercise jurisdiction "and shall give consideration to 
whether the offense arose out of any act or omission done in the 
performance of official duties." That an offense was inter se was, 
then, enough to give the United States exclusive jurisdiction, but 



86 Except that some duty-connected offenses could constitute "offenses of a 
military nature," as to which the United States had primary jurisdiction. 

36 The more recent Agreement with the Federation of the West Indies, in 
Article IX (3), follows the NATO formula, giving the United States primary 
jurisdiction over "offences arising out of any act or omission done in the 
performance of official duty." The Agreement with Australia includes an 
identical provision, Article 8(3) (a) (ii). 



231 

that it was committed in the performance of duty was not quite 
enough. This was only a factor to be taken into account in re- 
solving the conflict of jurisdiction and was to be weighed against 
the fact the victim was a Dominican national or local alien. 

The Philippines Agreement, 37 on the other hand, gives the 
United States exclusive jurisdiction over on-base offenses, and 
over off -base offenses if they are either inter se (narrowly de- 
fined) or committed by a member of the armed forces "while en- 
gaged in the actual performance of a specific military duty." The 
latter immunity does not, however, cover the civilian component. 
The Libyan Agreement, which gives the United States exclusive 
jurisdiction over on-base offenses by Americans, copies the NATO 
Agreement provisions with respect to both inter se offenses and 
offenses in the performance of duty, and extends the latter im- 
munity to members of the civilian component. Finally, the Saudi 
Arabian Agreement recognizes no immunity for offenses in the 
performance of duty as such; Saudi Arabia has jurisdiction over 
all offenses committed outside the described areas. 

Broadly speaking, then, the concept of the duty-connected 
offense has been given only limited application in post- World War 
II treaties. The view that a sending state should have exclusive 
or primary jurisdiction over offenses committed by a member of a 
visiting force while on duty, i.e., predicating immunity on his on- 
duty status, has not been expressly recognized in any agreement. 
Even immunity for offenses committed in the performance of 
duty, i.e., predicating immunity on the official nature of the act, 
has been granted only with limitations or even not at all. The 
explanation apparently lies in the great reluctance of receiving 
states to surrender their jurisdiction over offenses against their 
nationals. They are more prepared to surrender their jurisdiction 
over offenses which are purely private acts but involve only mem- 



87 Article XIII, par. 4 provides that "* * * If any offense falling under 
paragraph 2 of this Article [giving the Philippines jurisdiction "over all 
other offenses" committed outside the bases] is committed by any member 
of the armed forces of the United States 

(a) While engaged in the actual performance of a specific military 
duty * * * 

(b) * * * the fiscal * * * shall immediately notify the officer holding the 
offender in custody that the United States is free to exercise jurisdiction." 

The word "while" suggests the test is the status of the offender, not the 
nature of the offense, but the words "actual performance" and "specific 
military duty" narrow the scope of the immunity. 



232 

bers of the sending state's military community than they are 
over offenses committed in the performance of duty which involve 
their own citizens. 

DETERMINATION THAT THE OFFENSE WAS 
DUTY-CONNECTED 

Since whether the sending or receiving state has jurisdiction 
may turn on whether the offense was committed in the per- 
formance of duty, some procedure must be established for de- 
ciding whether it was so committed. The ambiguity inherent in 
the concept of performance of duty has made the procedural 
question both crucial and productive of controversy. 

Where the point has not been settled by agreement, the correct 
view seems to be that the court which has custody of the accused, 
rather than the military authorities of the sending state, has juris- 
diction to decide the question. The State Department took this 
position in the Hearings on the NATO Agreement. 38 The cases in 
which a person claims diplomatic immunity, or those where the 
claim is made that a vessel or a corporation or other agency is 
an instrumentality of a foreign government so employed as to 
entitle it to immunity, provide close analogies. The issue is not, 
however, analogous to the much debated question of whether the 
executive or the judiciary of the territorial state should decide 
such points. That is a question of the appropriate allocation 
of power within the government of the territorial state. Such 
issues are raised as whether the conduct of foreign affairs will 
be embarrassed if such matters are not left to the executive. 



88 A memorandum submitted by the State Department stated : "As a 
matter of practice the court having custody of the accused has the right to 
determine its own jurisdiction, i.e., whether the offense was committed in the 
performance of official duty. It is understood that due weight will be given 
to the views of the appropriate authorities of the visiting force as to 
whether or not the offense was so committed." Hearings Before Senate 
Foreign Relations Committee On Agreements Relating to Status of the 
North Atlantic Treaty Organization, Armed Forces, and Military Head- 
quarters, 83rd Cong., 1st Sess., at 68 (1953). See also the comments of Mr. 
Phleger, Legal Advisor of the Department, id. p. 71. See also the Restate- 
ment, Foreign Relations Law, Section 62, Comment c, p. 195: "Because the 
question presents a jurisdictional issue, any tribunal deciding whether or 
not to exercise its jurisdiction in a particular case must make its own 
finding. Acceptance of the certification of the commanding officer that an 
accused serviceman was acting in the performance of duty when the act in 
question was committed is one method of resolving this problem." 

See also 2(b) of the Reporters' Notes to Section 65 at 206-207. 



233 

Rather, the analogy is to the problem of the weight to be given, 
in the kinds of cases cited, to a communication from the am- 
bassador or other representative of the sending state to a court 
or the foreign office of the territorial state on the matter of 
status. On this, judicial decisions and the practice of states seem 
in harmony that the communication is not conclusive, and that the 
ultimate power to decide is in the court of the territorial state, 
based on all the evidence. 39 

There are, however, persuasive arguments for permitting the 
decision of whether an offense by a member of a visiting force 
was committed in the performance of his official duty to be made 
by his commanding officer. More is involved than is implied in 
the statement that his commanding officer knows best what the 
duties of the accused are. Inquiry by an agency of a foreign 
government into the issue can involve an inquiry into the mis- 
sion of the visiting force, its command structure, and comparable 
matters. Security considerations may suggest the inappropriate- 



88 There is some early authority which looks the other way. On this 
whole question, see the exhaustive studies by A.B. Lyon, "The Conclusive- 
ness of the Foreign Office Certificate," 1946 Brit. Yb. Int'l L. 240; and 
"The Conclusiveness of the 'Suggestion' and Certificate of the American 
State Department," 1947 Brit. Yb. Int'l L. 116. 

In the Hearings Before the Subcommittee of the Senate Armed Services 
Committee On Operation of Article VII, NATO Status of Forces Treaty, 
84th Cong., 1st Sess. (1955) after the action of the British Parliament in 
providing that the certificate of the commanding officer should be sufficient 
evidence until the contrary was shown had been commented on, the follow- 
ing exchange occurred between Senator Ervin and Mr. Leigh, Ass't General 
Counsel of the Department of Defense at p. 30 : 

"Senator Ervin: I expect that position would harmonize pretty much with 
our own civil law, that most courts would reserve the right to pass on that 
question when it arises before them. So I don't know that we can complain 
very much about that. 

"Mr. Leigh: You can argue that this was a jurisdictional fact. Take the 
situation for example, when an ambassador is tried in a case of the Supreme 
Court's original jurisdiction. I would assume that the Supreme Court would 
also reserve the right to determine whether it had jurisdiction in an am- 
bassadorial case, but if the State Department gave a statement as to whether 
an individual was or was not an ambassador, I think our Supreme Court 
would probably regard it as conclusive for the determination of that 
jurisdictional fact. I think it is a difficult question. 

"Senator Ervin: I can understand that they would be very reluctant to 
surrender that power. While it would be desirable for us if they would, I 
don't think we can complain too much if they don't." 



234 

ness of such an inquiry, particularly if the duties of the accused 
lie in a sensitive area or concern intelligence. Moreover, time is 
important where discipline is involved and the commanding officer 
can act more quickly than the local authorities. 40 

The cases decided without benefit of a treaty provision are in- 
conclusive. In the Schwartzfiger case the Panamanian court con- 
sidered as "established" by "the evidence of Major General Wil- 
liam Lassiter, Commanding General of the American Army in 
the Canal Zone" the fact, among others, that "in crossing that 
city by Avenida Bolivar, in the discharge of his duty, Schwartz- 
figer's car struck one of the pillars * * *." 41 

The Mixed Courts of Egypt at first took the position that the 
certificate of the commanding officer was determinative of the 
issue. They later, however, retreated from this position, as they 
did on the substantive issue of whether an offense "en service 
commande" was exclusively within the jurisdiction of sending 
state. 42 

The NATO Agreement does not deal expressly with the point. 
The United States during the negotiations consistently took the 
position, without recorded dissent by any other representative, 
that the decision was for the military authorities of the sending 
state. 43 Several of the NATO members have, contrary to this 



40 It was on this ground that the NATO negotiators rejected a proposal of 
the Portuguese representative that an appeal to arbitration should be pro- 
vided in order to decide whether an act had been done in the performance 
of official duty. "It was pointed out that such arbitration was not con- 
sistent with the speed required in the repression of criminal offenses." 
MS-R(51)lr. The truth of this observation is illustrated by the Girard case. 

The Reporter's Notes 2(b) to Section 65 of the Restatement, Foreign 
Relations Law, state: "Notwithstanding the procedure followed in the 
Girard case, the most satisfactory, and probably the most accurate, method 
of determining whether or not an act was performed in the course of duty, 
is to accept the certificate of the serviceman's commanding officer. This, of 
course, requires the territorial state to trust that the authorities of the 
force will act in good faith, but the agreement to admit the force must 
presuppose that good faith will in fact be exercised." 

41 21 A.J.I.L. 182, 184 (1927). 

42 Supra, pp. 220, 222, notes 16 and 17. 

48 "In reply to a further question raised by the Netherlands Representa- 
tive, the Chairman [Brig. Gen. Snow, U.S.] pointed out that it would be for 
the sending State to decide whether the members of a force were on official 
duty or not. This was part of the normal cooperation between allies." 
MC(J)-R(51)5. 

The United States Representative "pointed out, however, that there was 



235 

understanding, been reluctant to treat the certificate of the ac- 
cused's commanding officer as controlling. 

The Bill introduced in the British Parliament to implement the 
NATO Agreement gave controlling effect to the certificate. This 
prompted some protest — though nothing like that against the 
provision which made conclusive a certificate that the person 
named was a member of the visiting force — and the Home Secre- 
tary proposed an amendment, which became a part of the Act, 
under which the certificate is sufficient evidence unless the con- 
trary is proved. 44 This departure from the position taken by the 



a possibility of offences being committed in the performance of an official 
duty; the military authorities of the sending State, and not those of the 
receiving State, were alone capable of deciding whether or not an official 
duty was being carried out at the time." MS-R (51) 14. 

The United States Representative "stated that for obvious reasons of 
military discipline, his Government would not be likely to accept the possi- 
bility of leaving any authorities other than the military authorities free to 
decide whether or not an offence had been committed in the performance 
of official duty." MS-R (51) 14. 

"Although the Status of Forces Agreement does not specify who shall 
have the authority to make a final determination as to such matters, it is 
the position of the Department of Defense, based upon the minutes of the 
NATO working group which drafted the SOF Agreement, that such de- 
termination should properly rest with the authorities of the sending state." 
General Hickman, Hearings, Subcommittee of the Senate Armed Services 
Committee, op. cit. supra, note 2, at 28. 

"505 H.C. Deb. (5th Ser.) 595 (1952); 505 H.C. Deb. (5th ser.) 1183, 
1187 (1952). 

It is interesting that, when moving the second reading of the Bill, un- 
amended, in the House of Lords, the Lord Chancellor, Lord Simonds, in 
referring to the determination of whether an offense was committed in the 
course of duty, said: "There is no other way to deal with such a matter 
except to give to one authority or the other the absolute right to say 
whether the act which was done was done in the course of duty." 177 H.L. 
Deb. (5th Ser.) 463 June 26, 1952, col. 463. In the subsequent discussion 
of the amendment Earl Jowitt, ex-Lord Chancellor, objected on the ground 
that if the certificate was not conclusive, there could be controversy, and 
there should be no uncertainty regarding which court has jurisdiction. 177 
H.L. Deb. (5th Ser.) 466-70 (1952). 

There was no reference to the Summary Record of the NATO negotiations, 
which was at the time still classified. 

See the comments of General Hickman and Mr. Leigh, Hearings, Sub- 
committee of the Senate Armed Services Committee, op. cit. supra, note 2, 
at 29-30. 



236 

United States in the NATO negotiations, acquiesced in by the 
other members, has made no real difference in practice. 45 

France has agreed to accept the determination of the American 
military authorities that an offense was committed in the per- 
formance of duty, provided the determination is made by a staff 
judge advocate or other legal officer. 46 Earlier difficulties with 
Turkey have also been resolved, 47 as have those with Italy, though 
less satisfactorily. 48 

The situation in Japan, so much mooted in the Girard case, 
resembles that in the United Kingdom. The Agreed Minutes to 
the Administrative Agreement provide that a certificate of 
official duty issued by the commanding officer "shall, in any 
judicial proceedings, be sufficient evidence of the fact unless the 
contrary is proved," but the certificate "shall not be interpreted 
to prejudice in any way Article 318 of the Japanese Code of 
Criminal Procedure," which reserves to the court power to deter- 
mine matters of fact. 49 But Agreed View No. 43 50 provides 
that if the Chief Proescutor considers that there is proof con- 



*« "While such a certificate is not, under the Act, conclusive evidence, in 
practice no disputes have arisen on this point between the American au- 
thorities and those of the United Kingdom. The British courts have con- 
sistently accepted the determination made by the local commanders * * *." 
Snee and Pye, Status of Forces Agreements: Criminal Jurisdiction 51-52 
(1957). 

" Gen. Hickman, Hearings Before the Subcommittee of the Senate Armed 
Services Committee On Operation of Article VII, NATO Status of Forces 
Treaty, 85th Cong., 1st Sess. 17 (1957). 

* 7 The Turkish authorities initially took the position the Turkish courts 
would decide the issue, and in some cases they did so. On July 16, 1956 
a law was passed which provided that "the basis regarding the establishment 
of the status of duty" would be decided by the two governments. Shortly 
afterward, on July 28, an agreement was reached that a certificate of the 
highest ranking officer of the United States forces in Turkey would be ac- 
cepted by the Turkish courts. General Hickman, id. at 17, 35; Snee and 
Pye, op. cit. supra, note 8, at 52. The agreed procedure has occasioned 
difficulty because American installations are spread around the country, and 
the issuance and delivery of a certificate may be delayed until after trial in 
a Turkish court has begun. Id. at 52. 

* 8 No statute or decree governs the situation in Italy. The Italian authori- 
ties have informally agreed that the determination is for the American mili- 
tary authorities and in general the courts have acquiesced, but some 
prosecuting officials have demurred. Id. at 53. 

49 Id. at 53. 

50 Supra, p. 229, note 33. 



237 

tradicting the certificate, the matter should be referred to the 
Joint Committee. It was the inability of the Joint Committee to 
agree which prolonged the controversy in the Girard case. 

The Agreement with West Germany is in this regard more 
nearly in keeping with the understanding of the NATO negotia- 
tors. The certificate of the "highest appropriate authority of such 
sending State" is almost, but not quite, conclusive. 51 

The relevant provisions of the Agreement with the Philippines 
is in sharp contrast with the understanding reached by the NATO 
negotiators. Where an offense is both off-base and not inter se, 
so that the Philippines may have jurisdiction, the decision as to 
whether the offense was committed while the accused was "en- 
gaged in the actual performance of a specific military duty" is 
for the Philippine prosecutor. The American commander may 
appeal from an adverse decision to the Secretary of Justice, but 
the Secretary's decision is final. 52 

The Dominican Agreement left to the Mixed Military Commis- 
sion the decision of whether or not the fact that an offense arose 
out of any act or omission done in the performance of duty should 
be given weight in allocating jurisdiction. Presumably, the Com- 
mission was to determine whether the act was so done. 53 The 
Libyan Agreement is silent on the point. 

In summary, it seems that where there is no treaty provision 
on the question, the decision is for the court which has custody 
of the accused — which may, of course, be a court-martial of the 
sending state. The agreements to which the United States is a 
party are in most instances silent on the point ; only the Japanese, 
the West German, The Federation of the West Indies, and the 



61 Article 18. Paragraph 2 of the Article provides that "The German Court 
or authority shall make its decision in conformity with the certificate. In ex- 
ceptional cases, however, such certificate may, at the request of the German 
court or authority, be made the subject of review through discussions be- 
tween the Federal Government and the diplomatic mission in the Federal 
Republic of the sending State." 

The Agreement with the Federation of The West Indies provides, in 
Article IX (11) that "A certificate of the appropriate United States com- 
manding officer that an offence arose out of an act or omission done in the 
performance of official duty shall be conclusive, but the commanding officer 
shall give consideration to any representation made by the Government of 
the Territory." The Agreement with Australia is silent on this point. 

62 Article XIII, 4. 
"Article XV, (l)(b). 



238 

Philippines Agreements are explicit, and they lay down quite 
different rules. The NATO negotiators did reach a clear under- 
standing, contrary to the usual rule, that the decision was for 
the military authorities of the sending state. They did not, how- 
ever, embody their understanding in the Agreement. The Written 
Record was classified for such a long period that some NATO 
members did not comply with the understanding. Subsequent 
negotiations have brought the situation in some countries near 
that contemplated, but not even the German Agreement accepts it 
in toto. There is, then, no generally applicable rule on this cru- 
cial issue. 



CHAPTER XII 
WAIVER 

A state may waive jurisdiction in any case 1 and so also may it 
waive the immunity of any of its representatives. Since any 
immunity is predicated on an interest of the state, it is a privilege 
not of the person but of the state he represents. 2 This principle 
applies to members of the armed forces as well as to diplomats. 3 
The possibility of such a waiver is specifically noted in the Manual 
for Courts-Martial, United States, 1951. 4 

The NATO Agreement provides for waiver of the primary 
right to jurisdiction by either the receiving state or the sending 
state. 5 Waiver by the receiving state has played a larger role 
than the negotiators seemingly anticipated. There is reason also 
to suppose that the negotiators contemplated waiver by the send- 
ing state would be more common than has been the case. 6 Other 



1 As when a state agrees to the extradition of an individual it could try 
and punish, or the littoral state yields jurisdiction to the flag state where 
an offense is committed by a member of the crew of a warship or merchant- 
man in a foreign port in circumstances in which the littoral state would 
admittedly have a prior claim to jurisdiction. 

2 Article 32, Vienna Convention on Diplomatic Relations, April 18, 1961 ; 
Article 26, Draft Convention on Diplomatic Privileges and Immunities, 
Harvard Research, 26 A.J.I.L. (Supp.) 125 (1932). 

8 Wilson v. Girard, 354 U.S. 524 (1957) ; Chung Chi Cheung v. The King 
[1939], A.C. 160 (P.C.) ; Gounaris v. Minister e Public, Mixed Court of 
Cassation, Egypt, 1943, [1943-1945] Ann. Dig. 152 (No. 41); 1 Hyde, 
International Law 819 (2d ed., 1945). 

4 Par. 12, pp. 16-17. 

5 Article VII, 3(c) provides that where the right to exercise jurisdiction is 
concurrent, "If the State having the primary right decides not to exercise 
jurisdiction, it shall notify the authorities of the other State as soon as 
practicable. The authorities of the State having the primary right shall 
give sympathetic consideration to a request from the authorities of the 
other States for a waiver of its right in cases where the other State con- 
siders such waiver to be of particular importance." 

6 Waiver by the sending and by the receiving State were treated separately 
in the earlier drafts, and the sentence enjoining sympathetic consideration 



240 

agreements provide for waiver in comparable terms, 7 except that 
where the United States has exclusive jurisdiction, waiver only 
by the United States is, of course, contemplated. 8 

In the past, it has been the general practice of the United States, 
as a sending state, to ask for a waiver in all cases in which the re- 
ceiving state has primary jurisdiction. 9 It has in addition negoti- 
ated bilateral agreements with the Netherlands and Greece 10 



for a requested waiver was added first to the provisions relating to waiver 
by the sending state. MS-D(51)11. The Norwegian representative later 
noted that "Such a proviso would facilitate the adoption of the final docu- 
ment by the respective Parliaments." MS- (J) -R (51) 5. The provisions were 
combined and the "sympathetic consideration" sentence made applicable to 
both, in MS-D(51)11— 2d Revise. 

7 See Article XVII, 3(c) of the Japanese Agreement and the Agreed 
Minutes regarding 3(c); Article 2, 4(c) of the Iceland Agreement; Article 
XIII, 3 and 4 of the Philippines Agreement; Article 8, (3) (c) of the 
Australian Agreement. See also Article V, (4) (c) of the Bahama Islands 
Agreement regarding waiver by the United States. The Bahama Islands 
Agreement differs because where there is concurrent jurisdiction the concept 
of primary and secondary jurisdiction is not used, the Agreement simply 
providing that "the case shall be tried by such court as may be arranged 
between the Government of the Bahama Islands and the United States 
authorities." 

8 See Article XVII, 3 of the Ethiopian Agreement and Article VIII of the 
Agreement with Denmark regarding Greenland. See also Article 6, 4, of the 
superseded Convention with West Germany, and Article XX, (2) of the 
Libyan Agreement. Neither the Korean Agreement nor the expired 
Dominican Agreement refers specifically to waiver. 

9 The U.S. authorities in Italy were given authority to exercise discretion 
in requesting waivers in minor cases, with the result that the waiver rate 
increased from 14 to 20 per cent. Hearings Before the Subcommittee of the 
Senate Committee on Armed Services On Operation of Article VII, NATO 
Status of Forces Treaty, 87th Cong., 1st Sess., 26 (1960). The United States 
has, conversely, waived its primary jurisdiction in cases of multiple offenders 
in order to make possible a single prosecution. 

10 Paragraph 3 of the Annex to an Agreement of August 13, 1954 with 
the Netherlands provides that "The Netherlands authorities, recognizing that 
it is the primary responsibility of the United States authorities to main- 
tain good order and discipline where persons subject to United States Mili- 
tary law are concerned, will, upon request of the United States authorities, 
waive their primary right to exercise jurisdiction under Article VII, except 
where they determine that it is of particular importance that jurisdiction 
be exercised by the Netherlands authorities." The Netherlands in the period 
from Dec. 1, 1959 to Nov. 30, 1960 waived jurisdiction in all the 171 cases 
which arose. Hearings Before a Subcommittee of the Senate Committee on 



241 

and with Libya n designed to make waiver by those govern- 
ments the norm, to be granted in all except the unusual case. 
The Agreement with West Germany carries this approach a 
step further, providing for a blanket waiver of West German juris- 
diction on application of the sending state, which West Germany 
may recall in special cases. 12 The concept of waiver has in this 
Agreement shifted almost 180 degrees, since the sending state 
which requests a blanket waiver has primary jurisdiction in all 
cases, subject only to an option in the receiving state, West 
Germany, to reassert its jurisdiction in a particular case. 

Receiving states have waived jurisdiction admittedly theirs 
over members of the American forces in some two-thirds of all 



Armed Services, Operation of Article VII, NATO Status of Forces Treaty, 
87th Cong., 1st Sess., 25 (1961). 

Article II, 1, of the Agreement with Greece of September 7, 1956, is 
substantially the same as the provision in the Agreement with the Nether- 
lands. Greece in the period from Dec. 1, 1959 to Nov. 30, 1960, waived 
jurisdiction in all but three of 30 cases. Id., p. 24. 

The Agreement with the Federation of the West Indies provides, in 
Article 9(3) (c), that: "The authorities of the Territory will waive, upon 
request, their primary right to exercise jurisdiction * * * except where they 
in their discretion determine and notify the United States authorities that it 
is of particular importance that such jurisdiction be not waved." 

ii «* * * [T]he Government of the United Kingdom of Libya * * * hence- 
forth undertakes to waive its criminal jurisdiction in relation to members 
of the United States forces under the terms of the Agreement except in the 
case of an offense * * * which is considered by the Government of the King- 
dom of Libya to be of particular importance to the United Kingdom of 
Libya such as an offense against the safety of the Libyan state, an offense 
against the sovereignty or honor of the Libyan state, or an offense which the 
Libyan state considers to be of serious public concern, including sexual 
offenses which cause serious public concern. It is understood with respect 
to a case involving such an offense which is considered of particular im- 
portance to the United Kingdom of Libya that the Libyan authorities taking 
into account the spirit of cooperation expressed in Article XX of the Agree- 
ment, will in the course of appropriate consultations between the Libyan 
authorities and the United States military authorities give sympathetic con- 
sideration to a request from the United States authorities for a waiver of 
the jurisdiction of the Libyan authorities in such a case. * * *" 

12 Article XIX of the Agreement to Supplement the Agreement between 
the Parties to the North Atlantic Treaty regarding the Status of their 
Forces, etc.; Agreed Minutes Re Article XIX, Protocol of Signature to the 
Supplementary Agreement, Aug. 23, 1959. 

See also Articles 3g, h, i and j, 4 and 8 a of Procedural Agreement No. 
16 to the 26 September 1953 Agreements with Spain. 



242 

cases. 13 This is the average, world-wide. In some countries, the 
figure approaches 100% ; 14 in others it is much lower; 15 in some, 
it is zero. 16 The significance of the number of waivers granted by 



18 For the year from Dec. 1, 1954 through Nov. 30, 1955, there were 
10,249 offenses committed by those subject to U.S. military law over which 
receiving states had jurisdiction. Waivers were obtained in 6,769 cases, or 
66.04 per cent of all cases. Hearings Before the House Committee on 
Foreign Affairs on H.J. Res. 309, Part II, 84th Cong., 2d Sess., 562 (1956). 
The experience in other years has been similar. That waivers were not 
obtained in the other cases does not, of course, mean that 3480 Americans 
were imprisoned. Charges were dropped in 274 cases; there were acquittals 
in 225 others. Fines only were imposed in 2595 cases. Sentences to con- 
finement were imposed in only 266 cases, and in all except 120 the sentences 
to confinement were suspended. Ibid. 

"During the period December 1, 1958, through November 30, 1959, 12,909 
U.S. personnel were charged with offenses subject to the primary or exclu- 
sive jurisdiction of foreign courts throughout the world (9,355 of these 
offenses were traffic offenses). Foreign authorities waived jurisdiction in 
8,060, or 62.43 percent, of these cases and tried 4,070 cases (2,720 of which 
were traffic violations). In the remaining cases the charges were dropped 
or remained pending at the end of the reporting period. Foreign courts 
acquitted 214 individuals, an overall acquittal rate of 5.25 percent, imposed 
reprimands or fines only in 3,608 cases, and confinement in 248 cases. Con- 
finement was suspended in all but 100 of the cases in which confinement 
was adjudged. There was no sentence, including indeterminate sentences, 
which exceeded 10 years." Brig. Gen. Decker, Hearings Before the Sub- 
committee of the Senate Committee on Armed Services, supra, note 9, at 13. 
For the period December 1, 1959, through November 30, 1960 foreign au- 
thorities waived jurisdiction in 6,125 or 58.33 percent of 11,516 cases. Brig. 
Gen. Todd, Hearings Before the Subcommittee of the Senate Committee on 
the Armed Services, supra, note 10, at 14. 

It is interesting that in the same period foreign authorities waived juris- 
diction in 399 of 517 cases involving civilians and in 375 of 499 cases in- 
volving dependents, although the cases of Kinsella v. Singleton, 361 U.S. 
234, Gresham v. Hagan, 361 U.S. 278, and McElroy v. Guagliardo and Wil- 
son v. Bohlender, 361 U.S. 281, were decided on January 18, 1960, early 
in the period. Id. at 3. 

14 During the same period, Dec. 1, 1959 to Nov. 30, 1960, Japan waived in 
2,094 of 2,797 cases; France in 3,358 of 3,939 cases. Id. at 26, 24. 

16 During the same period, Dec. 1, 1959 to Nov. 30, 1960, Canada waived in 
only 25 of 358 cases; Panama tried 150 of 171; the United Kingdom 1,668 
of 1,946; Iceland granted waivers in only 3 of 268; the West Indies in only 
15 of 305. Id. at 24, 28, 25, 26, 27. 

10 During the same period, Dec. 1, 1959 to Nov. 30, 1960, Turkey waived in 
no cases of 50. Id. at 25. It is understood the Turkish authorities take the 
position that no Turkish official is authorized by law to waive jurisdiction. 
Morocco at one time refused to grant waivers, but in the period Dec. 1, 



243 

a particular country must, of course, be read with the provisions 
of the agreement with that country in mind. One would not 
expect as high a percentage of waivers in, say, the Phillippines, 
where the United States has jurisdiction over all on-base offenses, 
as in France, where it has primary jurisdiction over only inter se 
and duty-connected offenses. Over all, it seems probable that 
most offenses are subject to the primary jurisdiction of the re- 
ceiving state, so that, with waivers normally granted in two- 
thirds of the cases, waiver has assumed a major role. 

It has been argued that according so large a role to waiver is 
undesirable; that discretion, subject to influence by many con- 
siderations, has been substituted for the rule of law. 17 Perhaps 
there is merit to this view since the high percentage of waivers 
suggests that the allocation of jurisdiction in the various agree- 
ments may not represent solely a realistic balancing of the na- 
tional interests involved. Put another way, it suggests that re- 
ceiving states are in fact prepared to admit that the interests of 
a sending state in maintaining discipline and control over its 
forces outweighs those of the receiving state in maintaining the 
public order in its territory in more cases than the status of 
forces treaties recognize, e.g., in the NATO countries, in more 
than inter se and duty-connected cases. The difficulty, of course, 
is in formulating additional rules where the considerations in- 
volved are so numerous and subtle. 

The supplemental bilateral agreements with the Netherlands 18 



1959 to Nov. 30, 1960 it waived jurisdiction in 3 of 36 cases. Id. at 27. 

17 "There are undeniable advantages in the arrangements, generally of 
an informal nature, which permits such waivers. Were the attempts to be 
made to place these arrangements on a formal basis, whether in the form 
of an agreement or otherwise, it is quite possible that less might be secured 
by way of waivers than is now accomplished on a case-to-case basis. On 
the other hand, these waivers ex gratia by receiving states are subject to 
all of the vicissitudes of domestic politics. If the strength of public opinion 
makes itself felt in a particular case, jurisdiction over that particular case 
may not be granted to the sending state. Public emotion, newspapers, 
domestic politics, a sudden outburst of feeling against a particular foreign 
nation may thus influence a state to depart from its usual practice of 
waiving jurisdiction * * *." Baxter, "Jurisdiction over Visiting Forces and 
the Development of International Law," Am. Soc'y Int. L. Proc, 1958, 
174 at 177-178. But see the comments of Mr. Evans, Mr. Leigh, Prof. Snee 
and Mr. Menne, id., pp. 182-183; 186-187; 188-189; 191. 

18 Supra, note 10. 



244 

and Greece, 19 in a sense do no more than shift the burden of pro- 
ceeding to the receiving state. The phrase used in both, "except 
where they [the authorities of the receiving state], determine 
that it is of particular importance that jurisdiction be exercised" 
is not a definitive guideline. The supplemental agreement with 
Libya 20 reflects an effort to define by illustration the unusual 
case, in terms of the nature of the offense. The language is 
"such as an offense against the safety of the Libyan State, an 
offense against the sovereignty or honor of the Libyan State, 
or an offense which the Libyan State considers to be of serious 
public concern, including sexual offenses which cause serious 
public concern." This approach is carried further in the supple- 
mental agreements with West Germany. Article 19 of the Agree- 
ment to Supplement the [NATO] Agreement 21 refers only to 
cases "Where the competent German authorities hold the view 
that, by reason of special circumstances in a specific case, major 
interests of German administration of justice make imperative 
the exercise of German jurisdiction." The Protocol of Signa- 
ture 22 is more specific, referring to offenses against the state and 
killing, robbery and rape, and attempts to commit such offenses. 23 
There is precedent for this approach, 24 but its potential should 
not be overestimated. A receiving state may have a special in- 
terest not only in crimes against its security and major crimes 
of violence, but also in violations of its economic laws and in such 



19 Supra, note 10. 

20 Supra, note 11. 

21 Supra, note 12. 

22 Supra, note 12. 



28 The provisions of the Agreed Minutes and Declarations Re Article 19 
refer "in particular" to 

"(i) offenses within the competence of the Federal High Court of 
Justice (Bundesgerichtshof) in first and last instance or offences 
which may be prosecuted by the Chief Federal Prosecutor 
(Generalbundesanwalt) at the High Federal Court of Justice; 
"(ii) offences causing the death of a human being, robbery, rape, except 
where these offenses are directed against a member of a force or of 
a civilian component or a dependent; 
"(iii) attempt to commit such offences or participation therein." 
24 "The offenses of murder, manslaughter, and rape shall be tried only by 
the criminal courts of the United Kingdom." Art. 2, Annex III, British- 
Czechoslovak Military Treaty of October 25, 1940, quoted in Schwelb, "The 
Jurisdiction over the Members of the Allied Forces in Great Britain," 
Czechoslovak Year Book of International Law, 147 at 156, March, 1942. 



245 

minor crimes as traffic offenses. Moreover, a particular class of 
offenses may interest different states to a different degree, or the 
same state to a different degree at different times. A state's 
interest in punishing violations of its exchange control laws may, 
for example, vary depending on the condition of its balance of 
payments. 

Other approaches are possible. Jurisdiction could be allocated 
in part on the basis of rank. It may be said this is undemocratic. 
Where, however, the basis for the sending state's claim to juris- 
diction is military exigency, rank may be relevant and the demo- 
cratic principle is not in fact involved. Rank is after all a 
determining factor where diplomatic immunities are concerned. 
Only those having diplomatic rank are clearly entitled to com- 
plete immunity ; the members of the administrative and technical 
staff, and of the service staff, of a mission, and consuls, may have 
only a qualified immunity or no immunity. 25 

It may be that, as experience accumulates, a common law of 
waiver will develop which can serve as a basis for the formulation 
of new treaty rules. These rules should not, however, be too 
vague, nor should the procedure for deciding which state has 
jurisdiction under the rules be too complex. The first invites con- 
troversy, the second delay, which minimizes the effectiveness of 
trial and punishment by either state. Moreover, it seems unlikely 
that renegotiating our existing agreements would, in general, in- 
crease the number of cases over which the United States, as a 
sending state, now in fact exercises primary jurisdiction. 



See Chapter II, supra. 



CHAPTER XIII 
ENFORCEMENT 

The military authorities of a visiting armed force must neces- 
sarily have the power to exercise enforcement jurisdiction in the 
receiving state. This generalization by no means implies, however, 
that they must have all the many powers which a state may 
exercise in its own territory. A state, in the ordinary enforce- 
ment of its criminal law, may, anywhere in its territory, through 
its police, conduct investigations, make arrests, and hold in- 
dividuals in custody. A state may try an accused and, in that 
connection, summon witnesses and punish those who fail to ap- 
pear, refuse to testify, or give false testimony. Those who par- 
ticipate in the trial can be protected against claims for or 
charges of defamation. If the accused is convicted, a sentence 
may be imposed and carried out. A state may, in general, ex- 
ercise these powers with respect to any person found in its terri- 
tory, subject only to the limitations imposed by its constitution 
and by denial of justice doctrines. 

International law, in the absence of treaty, hardly accords the 
panoply of such powers to the military authorities of the sending 
state. Nor does it necessarily deny all of them to the receiving 
state, even if the visiting forces are in general immune from its 
jurisdiction. 1 This is, moreover, a peculiarly sensitive area. Mili- 
tary police of a foreign state, operating in a receiving state, 
represent a visible, tangible encroachment on the receiving state's 
"sovereignty," even if they exercise power only over members of 
the visiting force. If they exercise power over a national of the 
receiving state, resentment is inevitable. Conversely, the in- 
cidents that attend the arrest, interrogation and confinement of 
a member of the visiting force by the local authorities may 
peculiarly arouse the resentment of the sending state and its 
citizens. 

The police of a visiting force may not exercise their powers 



1 Supra, p. 92 ; 130 et seq. 



248 

within the receiving state without its consent, express or implied. 
Consent to the presence of a visiting force does not necessarily 
imply permission for its police to exercise their powers, e.g., per- 
mitting the crew of a warship to come ashore does not neces- 
sarily imply permission for the landing of a shore patrol. 2 Such 
consent may imply permission for the police of the force to oper- 
ate within a base (as they may on a warship in a foreign port) 
or where the forces are engaged in actual military operations. It 
does not necessarily imply permission for the police to operate 
elsewhere in the receiving state, or to exercise power over anyone 
not a member of the force, except possibly on a base or where 
the forces are engaged in actual military operations. 

Courts-martial of a sending state may certainly sit in the re- 
ceiving state and try an accused member of the force. They can 
summon members of the force as witnesses, and punish them for 
contempt or perjury. They quite clearly cannot exercise such 
power with respect to those not members of the force. Pre- 
sumably, the sending state can carry out a sentence of imprison- 
ment or, perhaps, execution on a base or where the force is 
engaged in actual military operations; perhaps it cannot do so 
elsewhere in the receiving state. 

Presumably the police of the receiving state can arrest and 
hold in custody a member of the visiting force for any offense for 
which they can try and punish him. Probably they can also take 
any reasonable steps to restrain him when he is in the act of 
committing a crime. It may be, however, that they can do none 
of these on a base — the analogies of the inviolability of an em- 
bassy and of a warship are relevant here — or where the force 
is present as a force, in actual military operations. 

These general conclusions are necessarily tentative. Authority 
is too sparse and inconclusive to give clear answers. Also here 
as elsewhere varying circumstances may suggest different conclu- 
sions on some or all of the problems. 

The post-World War II agreements to which the United States 
is a party have dealt more or less comprehensively with these 
problems. The agreed solutions have varied here as they have in 
other areas. 



2 Article 0625, U.S. Navy Regs., supra, p. 75, n. 35. 



249 

POLICE POWER 

The NATO Agreement is both less than precise and less than 
comprehensive with respect to enforcement jurisdiction. 

The sending state has the right "to police any camps, establish- 
ments, or other premises which they occupy" by agreement, and 
its military police "may take all appropriate measures to ensure 
the maintenance of order and security of such premises." 3 But 
"outside these premises, such military police shall be employed 
only subject to arrangements with the authorities of the receiving 
State and in liaison with those authorities, and in so far as such 
employment is necessary to maintain discipline and order among 
the members of the force." 4 There is no express provision on the 
question of whether the police of the sending state may arrest 
one not a member of the visiting force for an offense on a base. 
Perhaps the general grant to "take all appropriate measures" on 
a base is qualified by the blanket provision denying the sending 
state any right to exercise jurisdiction over other than members 
of the force. 5 

The right of the police of the receiving state to arrest members 
of the visiting force is recognized in the provision that "the au- 
thorities of the receiving and sending States shall assist each 
other in the arrest of members of a force or civilian component 
or their dependents ***."« it is implicit in the provision that 
"The authorities of the receiving State shall notify promptly the 
military authorities of the sending State of the arrest of any 
member of a force or civilian component or dependent." 7 The 
phrase "assist each other" is less than clear. Neither provision 
sets any limitation on the power to arrest, as on a base. 8 



8 Article VII, 10(a). 

4 Article VII, 10(b). 

5 Article VII, 4. 

* Article VII, 5(a). Article 6(c) provides that "the authorities of the re- 
ceiving and sending States shall assist each other in the carrying out of all 
necessary investigations into offences, and in the collection and production 
of evidence * * *." 

7 Article VII, 5(b). 

8 The Agreement with Iceland varies just enough from the NATO Agree- 
ment, with regard to enforcement, to raise further troubling doubts. Thus, 
in Article 2(10), the military police of the United States are given au- 
thority outside the agreed areas "subject to arrangements with the authori- 
ties of Iceland and jointly with those authorities." In the NATO Agreement 
the language is not "jointly with" but "in liaison with." 



250 

The Agreed Minutes which supplement the arrangement with 
Japan clarify and implement the provisions relating to police 
power. The American authorities have exclusive power to arrest 
within facilities and areas in use and guarded by our forces, 
subject only to the power of the Japanese police to arrest with 
American consent or when in pursuit of a flagrant offender. The 
United States undertakes also to arrest, within such facilities 
and areas, those not subject to its jurisdiction whose arrest is 
requested by the Japanese. In addition, the United States au- 
thorities may arrest in the vicinity of such facilities and areas 
those committing an offense against their security. The United 
States authorities are required immediately to turn over to the 
Japanese authorities those not subject to American jurisdiction. 9 
There are no implementing provisions regarding the power to 
police outside such facilities and areas. 

The Agreement with West Germany goes much further in 
clarifying and implementing the NATO provisions. The Article 
dealing with jurisdiction within an "accommodation" is not pre- 
cise; it seemingly recognizes the power to police of the sending 
state, but the power is not exclusive. 10 The right of the police of 
the visiting force to patrol "on public roads, on public transport, 
in restaurants (Gaststatten) and in all other places to which the 
public has access and to take such measures with respect to the 
members of a force, of a civilian component or dependents as are 
necessary to maintain order and discipline" is expressly af- 
firmed. 11 The right of the authorities of the sending state to 
arrest a person not subject to their jurisdiction, if he is caught 
or pursued in flagrante delicto, or has committed or is attempting 
to commit an offense within or directed against an installation of 
the sending state, is recognized, subject to detailed safeguards. 



8 Agreed Minutes re paragraphs 10(a) and 10(b), 1. The Japanese agree 
also not normally to exercise the right of search, seizure or inspection within 
the facilities and areas, nor with respect to property of the United States 
armed forces, wherever situated. Whenever such search, seizure or inspec- 
tion is desired by the Japanese authorities, the United States is committed 
to undertake it upon request. Agreed Minutes re paragraph 10(a) and 
10(b), 2. 

10 Article 53. 

11 Article 28. The military police are required, where public order and 
safety are endangered or disturbed by an incident involving members of a 
force, etc., to take measures to maintain or restore order or discipline, if 
so requested by the German authorities. 



251 

The person taken into custody must be delivered to the German 
authorities without delay. 12 

The other agreements to which the United States is a party 
vary over a wide range. The American forces in Korea are im- 
mune from arrest by the local authorities "in view of prevailing 
conditions, such as the infiltration of North Koreans into the 
territory of the Republic, United States forces cannot be sub- 
mitted, or instructed to submit, to the custody of any but United 
States forces." The United States authorities can, on the other 
hand, arrest Korean nationals "detected in the commission of 
offenses against the United States forces or its members," but 
must of course deliver them to the Korean authorities "as 
speedily as practicable." The Agreement with Denmark on Green- 
land apparently is to the same effect, within those defense areas 
for which the United States is responsible. 13 At the other ex- 
treme, the Agreement with Saudi Arabia apparently contemplates 
that Dhahran Airfield be patrolled by Saudi Arab guards, ac- 
companied by Americans, and that the Saudi Arabs have power 
to arrest there, as they expressly do in the remaining areas to 
which Americans may go. 14 

The Agreement with Ethiopia gives the United States exclu- 
sive authority to make arrests, including arrests of Ethiopian 
nationals, within the Installations occupied by the United States. 15 
It may exercise police powers outside the Installations "by ar- 
rangement" with the Ethiopian authorities. 16 The Ethiopian au- 
thorities may arrest members of the United States forces "outside 



12 Article 20. The Convention with West Germany was, of course, much 
more favorable to the sending state regarding the exercise of the power to 
police. Members of a force were immune from arrest by the German au- 
thorities, although they could be taken into custody, and searched in certain 
cases, e.g., when apprehended in flagrante delicto. Authorities of a force 
could arrest members of a force, and also those subject to German jurisdic- 
tion in certain cases, e.g., within an installation. See generally Article 7. 

18 Article VIII. 

14 Paragraphs 12 and 13. 

16 That the United States authority to arrest is exclusive is implicit in 
Article XVII, 6: "The United States authorities shall deliver to the 
Ethiopian authorities for trial and punishment all Ethiopian nationals and 
other persons normally resident in Ethiopia who have been charged by the 
Ethiopian or the United States authorities with having committed offenses 
within the limits of the Installations." Article XVII, 7, gives the United 
States power "to police the Installations and take appropriate measures" etc. 

18 Article XVII, 8. 



252 

the Installations for the commission or attempted commission of 
an offense." 17 The Agreement with Libya, although in general 
modelled on the NATO Agreement, is, with respect to the power 
to police, much like the Ethiopian Agreement. 18 

The Agreement with the Philippines is explicit that only the 
United States may exercise the power to police on a base, 19 except 
with the permission of the commanding officer. There is no provi- 
sion expressly authorizing the United States to exercise the 
power to police outside a base, nor for the Philippine authorities 
to arrest a member of the American forces outside a base, but 
both powers are implied. 20 

The revised Leased Bases Agreement gives the United States 
the exclusive right to arrest members of the United States forces 
and United States nationals subject to United States military law 
in a leased area ; 21 it does not deny the right of the local govern- 



17 Article XVII, 5. 

18 Article XX (8), which gives the United States power to police the agreed 
areas and maintain order therein, adds the clause: "[A]nd may arrest 
therein any alleged offenders and, when they are triable by the Libyan 
courts, will forthwith turn them over to the Libyan authorities for trial." 
This strongly suggests the United States power to police the agreed areas 
is exclusive, even though under Article XX (3) "The United States and 
Libyan authorities will assist each other in the arrest and handing over 
to the appropriate authority of members of the United States forces" etc. 

10 Article XIV. This is implicit also in Article XIII, 7, in which the 
United States agrees not to grant asylum in a base to any person fleeing 
Philippine jurisdiction. The commanding officer must, under Article XIV, 
on request arrest an offender against Philippine law, where the Philippines 
have jurisdiction, and surrender him to the Philippine authorities. 

20 Article XIII, 1, 3, and 4. 

21 Article VI of the Leased Bases Agreement of March 27, 1941 was not 
changed when the provisions on jurisdiction were amended. Paragraph (2) 
of Article VI is an agreement of the Government of the Territory to give 
reciprocal facilities for the arrest and surrender of offenders. This hardly 
implies that the United States may not arrest members of the American 
forces outside a base, though presumably that requires a separate arrange- 
ment with the local authorities. 

Article IX (12) of the Agreement with The Federation of the West Indies 
gives the United States express power to "police the defence areas" and to 
"take all appropriate measures to ensure the maintenance of order and 
security within such defence areas." It is not stated that these powers are 
exclusive, nor is it expressly stated that the powers granted include the 
power to arrest others than members of the United States Forces, although 
the language used is broad enough to extend to that power. This interpreta- 



253 

ment to arrest others in a Leased area, nor contain any other 
provisions on the power to police. The Dominican Agreement, on 
the other hand, implicitly recognized the right of the United 
States to arrest anyone on a "Site" but otherwise referred only to 
assistance by the Dominican authorities in arresting offenders 
subject to American jurisdiction. 

From this review it is apparent that all the agreements, in- 
cluding the NATO Agreement, deal only partially with the prob- 
lem of the power to police of the sending and receiving states. 
They leave much to implication or to customary law, and much to 
implementation by supplemental agreements and municipal legis- 
lation. Even their explicit provisions show no common pattern. 
The only generalizations that seem permissible are that a dis- 
tinction is made between the power to police on and off a base, 
and between the power to arrest members of a force and na- 
tionals or residents of the receiving state. 

CUSTODY 

Custody of the accused pending disposition of the charges 
against him is, from one point of view, a detail. No jail is, how- 
ever, a pleasant place to be, and in a situation where emotions 
are so easily aroused, that a national and particularly a member 
of the armed forces of one state is held in the jail of another state 
can trouble international relations. Custody is at the same time 
not a necessary concomitant of jurisdiction to try and punish. 
There is, in brief, room for accommodation here without sacrifice 
of any major principle. 

It would seem that, in the absence of agreement, a state which 
took an individual into custody could retain custody if it had 
jurisdiction, concurrent or exclusive, to try and punish him. 
Normally, of course, a state does not take an individual into 
custody unless it has such jurisdiction, but it may as a preventive 

tion is reinforced by the broad grant of powers to the United States in 
Article II. 

Clauses (5) (a) and (5) (b) of Article IX make it clear that either the 
authorities of the Territory or the military authorities of the United States 
may arrest members of the United States Forces, at least outside the 
"defence areas." 

Procedural Agreement No. 16 to the 26 September 1953 Agreements with 
Spain expressly recognizes the right of both the Spanish authorities and the 
United States military authorities to arrest members of the United States 
Forces, without express limitation as to place. See Articles 3, 3j and 7. 



254 

measure or by arrangement with another state. The problem is 
further complicated when the concept of primary and secondary 
jurisdiction is introduced. 

The same clause of the NATO Agreement which directs the 
authorities of both states to assist each other in making arrests, 
directs such assistance "in handing them over to the authority 
which is to exercise jurisdiction * * *. 22 This is qualified, how- 
ever, by the provision that "The custody of an accused member 
of a force or civilian component over whom the receiving State 
is to exercise jurisdiction shall, if he is in the hands of the send- 
ing State, remain with that State until he is charged by the re- 
ceiving State. " 23 The sending state may, in brief, request custody 
of the accused only if it has exclusive or primary jurisdiction to 
try; it may retain custody where the receiving state has such 
jurisdiction to try, but may not ask custody as a matter of 
right. 24 

Agreements supplemental to the NATO Agreement have been 
made with the Netherlands and with Greece varying the NATO 
arrangements regarding custody where the receiving state has 
jurisdiction. The Netherlands Agreement gives the United States 
custody "pending trial" ; 25 that with Greece "pending completion 
of trial proceedings." 26 Under the more detailed provisions of 
the 1963 Agreement with West Germany, 27 the sending state may 



"Article VII, 5(a). 

28 Article VII, 5(c). As to the possible meanings of the word "charged" 
under the law of the several NATO members, see Snee and Pye, Status of 
Forces Agreements: Criminal Jurisdiction, 92-93 (1957). 

24 While neither of the provisions imposes an explicit obligation on the 
sending state to take a member of its force into custody for a violation of 
local law, nor to keep him in custody if he has been arrested, nor to keep 
him in the receiving state, these are generally considered to be implicit 
obligations. 

The Agreement with The Federation of the West Indies contains, in 
Article IX, (5) (a) and (5) (b), provisions comparable to those found in the 
NATO Agreement, but adds the sentence: "In cases where the United States 
authorities may have the responsibility for custody pending the completion 
of judicial proceedings, the United States authorities shall, upon request, 
make such a person immediately available to the authorities of the Territory 
for purposes of investigation and trial and shall give full consideration to 
any special views of such authorities as to the way in which custody should 
be maintained." 

26 Paragraph 3 of the Annex. 

26 Article III. 

27 Article 22. 



255 

in general retain or request custody, except where the offense is 
"directed solely against the security of the Federal Republic," 
until release, acquittal or commencement of the sentence. The 
sending state is expressly obligated to make the accused "availa- 
ble to the German authorities for investigation and criminal 
proceedings." 28 The Agreed Minutes supplementing the arrange- 
ment with Japan provide that where Japan has primary jurisdic- 
tion "The Japanese authorities will, unless they deem that there 
is adequate cause and necessity to retain such offender, release 
him to the custody of the United States military authorities pro- 
vided that he shall, on request, be made available to the Japanese 
authorities, if such be the condition of his release. The United 
States authorities shall, on request, transfer his custody to the 
Japanese authorities at the time he is indicted by the latter." 29 
The Philippines Agreement similarly gives the United States 
custody, but "pending trial and final judgment"; 30 that with 
Libya provides that "The Libyan authorities will, if the United 
States authorities request the release on remand of an arrested 
member of the United States forces, release him from their 
custody on the United States authorities' undertaking to present 
him to the Libyan courts for investigatory proceedings and trial 
when required." 31 There are, of course, no comparable provi- 
sions, other than those simply calling for surrender of an arrested 
member of the American forces, in those agreements, e.g., with 



28 The Supplemental Agreement with the Netherlands imposes a com- 
parable commitment; that with Greece simply states that "Custody of the 
accused shall be maintained in Greece." 

29 Re paragraph 5. 

30 Article XIII, 5. The commanding officer is required to "acknowledge in 
writing that such accused has been delivered to him * * * and that he will 
be held ready to appear and will be produced before said court when re- 
quired by it." 

31 Article XX (3). Procedural Agreement No. 16 to the 26 September 1953 
Agreements with Spain provides that the United States will, upon request, 
be given custody of a member of the United States Forces arrested by the 
Spanish authorities (Article 3 (a), (b), (c), (d) and (e) ) and that the 
United States shall retain custody of a member of the United States Forces 
arrested by United States authorities. (Article 3j). If the Spanish authori- 
ties are to exercise jurisdiction, custody "shall remain with the United 
States authorities until such time as the trial is concluded and the sentence 
pronounced. The United States authorities shall accept the responsibility of 
assuring the presence of the offender at the appointed time of trial." 
Article 8(c). 



256 

Saudi Arabia and Ethiopia, under which the United States has 
exclusive jurisdiction. 

The agreements cited display an increasing tendency to treat 
custody as a separate issue from jurisdiction, and to permit the 
sending state to have custody of an accused member of its forces 
even when he has been arrested by the receiving state for an 
offense as to which the receiving state has primary jurisdiction. 
It is submitted that, since permitting the sending state to have 
custody in no way prejudices any significant interest of the re- 
ceiving state and can minimize international friction, it has 
obvious merit. 

WITNESSES 

The right of courts-martial of sending states to sit in the re- 
ceiving state is clear. 32 The courts-martial may, of course, compel 
members of their forces to appear as witnesses and testify. The 
NATO Agreement does not, however, contain any express provi- 
sion for compulsory process to compel the attendance of nationals 
of the receiving state as witnesses before a court-martial, al- 
though a general provision requires reciprocal assistance "in the 
collection and production of evidence." 33 The negotiators con- 
templated that under this provision receiving states would be 
obligated to compel the attendance of their nationals. 34 Only the 
United States 35 and the United Kingdom 36 have, however, imple- 
mented the obligation. 

Where a member of a visiting force is tried in a court of the 
receiving state he is, on the other hand, entitled "to have com- 
pulsory process for obtaining witnesses in his favour, if they are 
within the jurisdiction of the receiving state." 37 The receiving 
state can in ordinary course summon members of the visiting 
force as well as its own nationals, though it may need the as- 



32 Article VII, 1(a) of the NATO Agreement provides that "[T]he mili- 
tary authorities of the sending State shall have the right to exercise within 
the receiving State all criminal and disciplinary jurisdiction conferred on 
them by the law of the sending State over all persons subject to the military 
law of that State." See p. 88, infra. 

33 Article VII, 6(a). 

a * Snee and Pye, op. cit. supra, note 22, at 95. 

85 Service Courts of Friendly Foreign Forces Act, 22 USC 703. 

3e Snee and Pye, op. cit. supra, note 22, at 97. 

87 Article VII, 9(d). 



257 

sistance of the commanding officer to effect service on a base. 38 
Paradoxically, then, a member of a force may be more effectively 
protected in this regard when tried by a foreign court than when 
tried by a court-martial. 

The Agreement with West Germany reaffirms the obligation of 
the sending state to compel a member of its force or civilian 
component to appear before a German court. 39 More important, 
it imposes on Germany the express obligation to secure the at- 
tendance of witnesses before courts-martial "in accordance with 
German law/' 40 The Agreement with Iceland adds comparable 
commitments to the NATO provisions. 41 The Libyan Agreement, 
which follows the language of the NATO Agreement in many 
provisions, adds to the paragraph modelled on Article VI (a) 
relating to reciprocal assistance "in the collection and production 
of evidence," the words "including the attendance of witnesses at 
the trial. " 42 The Agreement with Ethiopia imposes the reciprocal 
obligations in more explicit language. 43 The Agreement with the 
Dominican Republic, on the other hand, was less explicit even 
than the NATO Agreement 44 and the revised Leased Bases 
Agreement is, in this regard, vague. 45 Other agreements, e.g., 



38 Snee and Pye, op. cit. supra, note 22, at 94. Compelling a member of the 
American forces to appear as a witness in a foreign court in which he may 
not be protected against self-incrimination raises difficulties. Id., at 98 et seq. 

39 Article 37, 1(a). The obligation with respect to dependents is qualified 
by the phrase "insofar as the military authorities are able to secure their 
attendance." Article 37, 1 (b) . 

40 Article 37, 2. 

41 Article 2, 7(b). 

42 Article XX (4). 

43 Article XVII, 4. 

44 Article XV. The reciprocal obligations are phrased in terms only of 
"the collection of evidence" — but not its production — and "the seizure and in 
proper cases the handing over of exhibits and all objects connected with 
the offense." 

45 Article VI, Leased Bases Agreement of March 27, 1941, denies to the 
Territory the right to serve process — defined to include a summons, subpoena, 
warrant, writ or other judicial document for securing the attendance of a 
witness — on a base without the permission of the commander, but imposes 
on the commander the obligation to serve the process. The Article then 
provides that where the courts (only civil ?) have jurisdiction, the Terri- 
tory "will on request give reciprocal facilities as regards the service of 
process," which may or may not include service on a local national. See also 
Article IV (4). 

The Agreement with the Federation of the West Indies makes no reference 



258 

those with Saudi Arabia, Denmark regarding Greenland, and 
Korea, make no reference whatever to the problem. 

Some, though not all recent agreements, have made more 
explicit than does the NATO Agreement the obligations of the 
sending and receiving states with respect to compelling the at- 
tendance of witnesses before the other's tribunals. Requiring 
such assistance, particularly by the receiving state when the send- 
ing state is exercising jurisdiction, does raise an issue of policy. 
So long, however, as the assistance is in the form of using the 
receiving state's own process to compel attendance, the advantage 
to the receiving state from the trial and punishment of offenders 
would seem to outweigh the disadvantages. Only two agreements, 
apparently, go farther, and deal specifically with the matters of 
contempt and perjury. 46 Only the Agreement with West Germany 
refers to the immunity of participants in a trial. 47 

CIVIL RIGHTS OF THE ACCUSED 

The NATO Agreement contains only two provisions which re- 
late to the rights of a member of a visiting force against the send- 
ing state. One is that a death sentence shall not be carried out 
in the receiving state if its legislation does not provide for such 
punishment in a similar case. 48 The provision, for which there 
are precedents, 49 reflects a compromise prompted by the antipathy 
of many NATO members toward capital punishment. The second, 
a qualified double jeopardy provision, provides that one tried and 
acquitted or punished by one state may "not be tried again for 
the same offence within the same territory by the authorities of 
another Contracting Party." 50 Normally, of course, this is more 
restrictive vis-a-vis the receiving than the sending state. More- 
over, an exception makes the restriction inapplicable to trials 
by the military authorities of the sending state "for any violation 

to the "defence areas" as such in this connection, but simply provides, in 
Article IX (6) (a) that: "To the extent authorized by law, the authorities 
of the Territory shall assist each other in the carrying out of all necessary 
investigations into offences, in providing for the attendance of witnesses, and 
in the collection and production of evidence * * *." 

"Article XVII, 9 of the Ethiopian Agreement and Article XX (7) of the 
Libyan Agreement. 

47 Article 39. 

* 8 Article VII, 7(a). 

" Supra, p. 129. 

60 Article VII, 8. 



259 

of rules of discipline." There is no provision requiring trial in 
the vicinity of the crime, for which there is also precedent. 51 
The provision, where it has appeared, was seemingly motivated 
by a desire to protect the interests of the receiving state and its 
nationals rather than those of the accused. 

The Japanese, Icelandic, Australian, and Federation of the West 
Indies Agreements also contain the restriction with respect to the 
death penalty. No other agreement does. The Icelandic Agree- 
ment varies the double jeopardy provision by making it ap- 
plicable only to Iceland. The revised Leased Bases Agreement 
makes the defense unavailable where a civil court of the Territory 
and a United States court-martial have jurisdiction, but the court 
conducting the second trial is directed to take into account any 
punishment previously awarded. 52 Several agreements include 
restrictions on the place of trial. The Agreed Minutes supple- 
menting the Japanese arrangements require that in certain cases 
the trial "shall be held promptly in Japan within a reasonable 
distance from the places where the offenses are alleged to have 
taken place unless other arrangements are mutually agreed 
upon." 53 The Convention with West Germany provided that 
where an offense was against "German interests" the trial had to 
be held within the Federal territory except in cases of military 
exigency. 54 The Agreement with West Germany has a comparable 
provision. 55 The Agreement with Ethiopia is unique in that it 
requires trial "within the installations or outside Ethiopia." 56 

In general, then, subject to these limited restrictions in some 
receiving states, the civil rights of an accused, tried by a court- 
martial of the sending state, depend on that state's law only. 

The civil rights of a member of a visiting force tried by a 
court of the receiving state depend on the law of that state, in- 
ternational law, and the terms of any applicable treaty. They 
depend in no way on the law of the sending state, which governs 



61 Supra, p. 130, n. 51 ; 134. 

52 Article IV, (5) (b). In the unlikely event that the offence is within the 
jurisdiction of a civil court of the Territory and a civil court of the United 
States, trial by one excludes trial by the other. Article IV, (5)(c). The 
Agreement with the Federation of the West Indies, in Article IX (8), 
reverts to the NATO pattern. 

53 Re paragraph 3 (c) , 2. 

54 Article 8, 4. 

55 Article 26. 

56 Article XVII, 4. 



260 

only the rights of an accused person with respect to acts of 
that state. 

Whether members of the American forces, tried in foreign 
courts, would be accorded adequate protection has, quite properly, 
caused much concern. The NATO Agreement enumerates a 
significant list of rights to which the accused, whether a member 
of a force or of the civilian component or a dependent, is en- 
titled. 57 The Agreed Minutes supplementing the arrangements 
with Japan add others, 58 as does the Agreement with Libya 59 
and that with Spain. 60 Other agreements, including of course 



57 Article VII, 9 reads: 

Whenever a member of a force or civilian component or a dependent is 
prosecuted under the jurisdiction of a receiving State he shall be entitled — ■ 

(a) to a prompt and speedy trial; 

(b) to be informed, in advance of trial, of the specific charge or charges 
made against him; 

(c) to be confronted with the witnesses against him; 

(d) to have compulsory process for obtaining witnesses in his favour, if 
they are within the jurisdiction of the receiving State; 

(e) to have legal representation of his own choice for his defence or to 
have free or assisted legal representation under the conditions pre- 
vailing for the time being in the receiving state ; 

(f) if he considers it necessary, to have the services of a competent in- 
terpreter; and 

(g) to communicate with a representative of the Government of the send- 
ing State and, when the rules of the court permit, to have such a 
representative present at his trial. 

The Agreement with the Federation of the West Indies repeats the NATO 
list, in Article IX (9), but adds that the trial "shall be public except when 
the court decrees otherwise in accordance with the law in force in the 
Territory." Article 8(9) of the Australian Agreement is substantially the 
same as Article VII, 9 of the NATO Agreement. 

58 Re paragraph 9. The added rights specifically stated are : 

(a) He shall not be arrested or detained without being at once informed 
of the charge against him or without the immediate privilege of 
counsel; nor shall he be detained without adequate cause; and upon 
demand of any person such cause must be immediately shown in open 
cours in his presence and the presence of his counsel; 

(b) He shall enjoy the right to a public trial by an impartial tribunal; 

(c) He shall not be compelled to testify against himself; 

(d) He shall be permitted full opportunity to examine all witnesses; 

(e) No cruel punishment shall be imposed upon him. 

59 Article 20 (5). 

60 Procedural Agreement No. 16 to the 26 September 1953 Agreements 
with Spain lists the rights accorded by the NATO Agreement and (1) Pro- 



261 

those under which the United States has exclusive jurisdiction, 

make no reference to civil rights. 

The Senate, in its resolution giving its advice and consent to 

the ratification of the NATO Agreement, stated it to be the sense 

of the Senate that : 

"2. Where a person subject to the military jurisdiction of 
the United States is to be tried by the authorities of a re- 
ceiving state, under the treaty the Commanding Officer of the 
Armed forces of the United States in such state shall ex- 
amine the laws of such state with particular reference to the 
procedural safeguards contained in the Constitution of the 
United States ; 

3. If, in the opinion of such commanding officer, under all 
the circumstances of the case, there is danger that the ac- 
cused will not be protected because of the absence or denial 
of constitutional rights he would enjoy in the United States, 
the commanding officer shall request the authorities of the 
receiving state to waive jurisdiction in accordance with the 
provisions of paragraph 3 (c) of Article VII (which requires 
the receiving state to give 'sympathetic consideration' to 
such request) and if such authorities refuse to waive juris- 
diction, the commanding officer shall request the Department 
of State to press such request through diplomatic channels 
and notification shall be given by the Executive Branch to the 
Armed Services Committees of the Senate and House of Rep- 
resentatives ; 

4. A representative of the United States to be appointed 
by the Chief of Diplomatic Mission with the advice of the 
senior United States military representative in the receiving 
state will attend the trial of any such person by the authori- 
ties of a receiving state under the agreement, and any failure 
to comply with the provisions of paragraph 9 of Article VII 
of the agreement shall be reported to the commanding officer 
of the armed forces of the United States in such state who 
shall then request the Department of State to take appropri- 
ate action to protect the rights of the accused, and notifica- 

tection against an ex post facto law, (2) Protection against Bills of 
Attainder, (3) Have a public trial and be present at his trial, (4) Have the 
burden of proof upon the prosecution, (5) Be tried by an impartial Court 
and (6) Be protected from the use of a confession obtained by illegal or 
improper means. 



262 

tion shall be given by the Executive Branch to the Armed 

Services Committees of the Senate and House of Representa- 

tives." 

The Department of Defense has fully performed the mandate 
with which it was charged by the Senate, both within NATO 
member states and elsewhere. It has, in this connection, had to 
determine whether the standard of comparison should be the con- 
stitutional rights the accused would enjoy in a Federal court, or 
those he would enjoy in a state court, or those he would enjoy in 
a court martial. The Department of Defense has adopted the 
standard of the constitutional rights an accused would enjoy in a 
state court, although literally read, the mandate of the Senate ap- 
parently refers only to those he would enjoy before a court 
martial. Reports have been regularly made to the Armed Services 
Committees, and have consistently shown, with the rarest of 
exceptions, no violations of the rights of the accused. The laws 
of our allies have, in brief, adequately protected the rights of 
members of our armed forces brought before their courts for trial. 



CHAPTER XIV 
CONCLUSION 

States have not in the past been willing, and are not now pre- 
pared, to accord visiting armed forces blanket immunity from 
their criminal jurisdiction, at least in time of peace, except in 
special circumstances. A receiving state violates no rule of in- 
ternational law in taking this position. 

Since a state can deny to any other state the right to station 
armed forces in its territory, it can couple a grant of the right 
with the requirement that mutually satisfactory arrangements be 
made with respect to jurisdiction over the visiting forces. Con- 
troversy can arise, however, on the understanding to be implied 
when foreign troops are permitted to enter a state without an 
explicit agreement governing their status having been made. The 
sending state is, it seems clear, entitled to enforce its law through 
courts-martial sitting in the receiving state. To this end, the 
military authorities of the sending state may exercise a limited 
police power over the visiting forces and may summon members 
of the force as witnesses. Comparable powers may perhaps be 
exercised over civilians accompanying the visiting force and over 
dependents. The sending state has no such power with respect to 
others, except perhaps in extreme cases, e.g., in a combat zone 
in time of war. The receiving state has no, or at most a limited, 
supervisory jurisdiction over the visiting forces. The receiving 
state may, for example, have jurisdiction to decide whether the 
accused is in fact a member of the visiting force. 

The receiving state, it seems equally clear, has concurrent juris- 
diction over the visiting forces except perhaps in special cir- 
cumstances. Put another way, no blanket immunity is to be im- 
plied from the grant of permission to station troops in the re- 
ceiving state. The immunity may exist with respect to troops in 
passage, or in time of war in a combat zone. The immunity ap- 
pears also to be recognized with respect to the crews of warships 
for acts which occur on board the warship, but not with respect 



264 

to armed forces on a base. Whether the immunity will be implied 
where the act was done in the performance of duty is unsettled. 
Where there is concurrent jurisdiction, international law pro- 
vides no rule for resolving the conflict. 

That there is so much doubt in this whole area is under- 
standable. The sending state has an obvious interest in seeking 
to keep complete control over its armed forces at all times. The 
receiving state has an equally obvious interest in claiming con- 
current jurisdiction. All of the considerations which support the 
territorial principle bolster the receiving state's claim. These 
considerations center around two basic ideas. One is the interest 
of the receiving state in protecting both the state and the lives 
and property of its citizens and residents. The other is that 
justice can be administered most effectively at the place of the 
crime. The weight to be given these conflicting interests can, of 
course, vary with the circumstances, and the circumstances in 
which armed forces are stationed abroad can and do differ over 
a very wide range. 

All of this explains and justifies the recent practice of allocating 
jurisdiction over visiting forces by formal agreements. An agree- 
ment can both resolve the doubts which exist in the absence of 
agreement, and also take into account the particular circum- 
stances. 

The status of forces agreements which have been entered into 
since World War II are illuminating with respect to the con- 
sensus of states as to the proper allocation of jurisdiction. They 
suggest that in special circumstances complete immunity for the 
visiting force may be appropriate. They also suggest that in 
other circumstances, as where a large force is to be stationed in 
a receiving state for an indefinite period, the situation is rela- 
tively stable, and a common language or cultural background 
make likely much intermingling of the troops and the local popula- 
tion, only a limited immunity will normally be accorded the 
visiting forces. 

The most interesting development reflected in the status of 
forces agreements, in the light of much that has been written on 
the subject of jurisdiction, is the readiness of receiving states to 
accord immunity (or priority of jurisdiction in the sending state) 
with respect to inter se offenses. Receiving states have also 
shown a perhaps less marked willingness to recognize the on-base 
concept, either as alone justifying according exclusive or prior 



265 

jurisdiction to the sending state, or at least as an added factor 
supporting according such jurisdiction to the sending state over 
inter se offenses committed on a base. These attitudes are in 
marked contrast to the reluctance of receiving states to recog- 
nize such jurisdiction in the sending state over duty-connected 
offenses. Much of the reluctance arises from a state's interest in 
protecting its citizens from the criminal acts of the visiting forces, 
even though the acts were done in performance of duty. A part 
of the reluctance stems, however, from the difficulties encountered 
in defining the concept, determining which acts fall within it, 
and deciding who is empowered to make the decision on whether 
a particular act was or was not duty-connected. Many misunder- 
standings could be avoided if these matters could be clarified. 

The large number of waivers that receiving states have granted 
suggests they are prepared to yield jurisdiction to a sending state 
in many cases which fall outside the inter se, on-base, and duty- 
connected categories. The wide use of waivers as a substitute for 
an agreed allocation of jurisdiction is undesirable, since it some- 
times permits irrelevant or improper considerations to influence 
the decision. Several recent agreements mark the beginning of an 
effort to deal with this problem. Neither these first attempts nor 
any of several alternative approaches suggest, however, that es- 
tablishing new categories or guidelines for the allocation of juris- 
diction will be easy. It may be that more experience is needed 
before these efforts are likely to be successful. In the meantime, 
the practice initiated in Italy of exercising discretion in asking 
for waivers, rather than asking waivers in all cases involving 
American troops, is a step in the right direction. 

It should be kept in mind always that the status of forces 
problem concerns the issue of jurisdiction, not that of the guilt or 
innocence of the accused. All the evidence shows that visiting 
forces are characteristically treated as fairly — and at least as 
leniently — when they are tried in a civil court of an ally as 
when they are tried by their own courts-martial. Moreover, rela- 
tions among the nations of the Free World are a crucial factor 
in the cold war which makes it necessary that troops be stationed 
abroad. Insisting that the members of these forces can be tried 
only by courts-martial of the sending states, if the insistence is 
based on any ground other than demonstrable military exigency, 
can trouble those relations. Also, making a major incident of 
case after case in which a member of a visiting force is held for 



266 

trial in a receiving state's court is destructive of discipline. The 
threat of nuclear war requires a higher rather than lower level 
of discipline in the Free World's armed forces. Obviously, the 
ultimate solution to many of the status of forces problems would 
be the attainment of a standard of discipline which reduces to 
an absolute minimum the cases in which a member of an armed 
force violates the law of any state. In the meantime, it is sug- 
gested that two lines of approach will be most helpful. One is to 
try to identify additional classes of cases which both sending and 
receiving states may be prepared to agree should come under the 
exclusive or primary jurisdiction of one or the other. The second 
is to improve the administrative and enforcement provisions of 
status of forces agreements. Much can be done in this area to 
eliminate friction without the sacrifice of any significant interest 
of any state. 



APPENDIX I 
NATO STATUS OF FORCES AGREEMENTS 

Agreement between the Parties to the North Atlantic Treaty 
regarding the Status of their Forces. June 19, 1951. 4 UST 1792, 
TIAS 2846, 199 UNTS 68. 

The Parties to the North Atlantic Treaty signed in Washing- 
ton on 4th April, 1949. 1 

Considering that the forces of one Party may be sent by ar- 
rangement, to serve in the territory of another Party ; 

Bearing in mind that the decision to send them and the condi- 
tions under which they will be sent, in so far as such conditions 
are not laid down by the present Agreement, will continue to be 
the subject of separate arrangements between the Parties con- 
cerned ; 

Desiring, however, to define the status of such forces while in 
the territory of another Party ; 

Have agreed as follows : 

Article I 

1. In this Agreement the expression — 

(a) "force" means the personnel belonging to the land, sea, 
or air armed services of one Contracting Party when in the terri- 
tory of another Contracting Party in the North Atlantic Treaty 
area in connexion with their official duties, provided that the 
two Contracting Parties concerned may agree that certain in- 
dividuals, units or formations shall not be regarded as con- 
stituting or included in a "force" for the purposes of the present 
Agreement ; 

(b) "civilian component" means the civilian personnel ac- 



1 A Protocol on the Status of International Military Headquarters set up 
pursuant to the North Atlantic Treaty was signed on August 28, 1952. 
5 UST 870, TIAS 2978, 200 UNTS 340. An Agreement on the Status of the 
North Atlantic Treaty Organization, National Representatives and Interna- 
tional Staff was signed on September 20, 1951. 5 UST 1087, TIAS 2992, 
200 UNTS 4. 



268 

companying a force of a Contracting Party who are in the employ 
of an armed service of that Contracting Party, and who are not 
stateless persons, nor nations of any State which is not a Party 
to the North Atlantic Treaty, nor nationals of, nor ordinarily 
resident in, the State in which the force is located ; 

(c) "dependent" means the spouse of a member of a force 
or of a civilian component, or a child of such member depending 
on him or her for support ; 

(d) "sending State" means the Contracting Party to which 
the force belongs ; 

(e) "receiving State" means the Contracting Party in the 
territory of which the force or civilian is located, whether it be 
stationed there or passing in transit ; 

(f ) "military authorities of the sending State" means those 
authorities of a sending State who are empowered by its law to 
enforce the military law of that State with respect to members 
of its forces or civilian components ; 

(g) "North Atlantic Council" means the Council established 
by Article 9 of the North Atlantic Treaty or any of its subsidiary 
bodies authorised to act on its behalf. 

Article II 

It is the duty of a force and its civilian component and the 
members thereof as well as their dependents to respect the law 
of the receiving State, and to abstain from any activity incon- 
sistent with the spirit of the present Agreement, and, in par- 
ticular, from any political activity in the receiving State. It is 
also the duty of the sending State to take necessary measures 
to that end. 

Article VII 

1. Subject to the provisions of this Article, 

(a) the military authorities of the sending State shall have 
the right to exercise within the receiving State all criminal and 
disciplinary jurisdiction conferred on them by the law of the 
sending State over all persons subject to the military law of that 
State ; 

(b) the authorities of the receiving State shall have jurisdic- 
tion over the members of a force or civilian component and their 
dependents with respect to offences committed within the terri- 



269 

tory of the receiving State and punishable by the law of that 
State ; 

2. (a) The military authorities of the sending State shall have 
the right to exercise exclusive jurisdiction over persons subject 
to the military law of that State with respect to offences, includ- 
ing offences relating to its security, punishable by the law of the 
sending State, but not by the law of the receiving State. 

(b) The authorities of the receiving State shall have the 
right to exercise exclusive jurisdiction over members of a force or 
civilian component and their dependents with respect to offences, 
including offences relating to the security of that State, punish- 
able by its law but not by the law of the sending State. 

(c) For the purposes of this paragraph and of paragraph 3 
of this Article a security offence against a State shall include 

(i) treason against the State ; 

(ii) sabotage, espionage or violation of any law relating to 
official secrets of that State, or secrets relating to the national 
defence of that State. 

3. In cases where the right to exercise jurisdiction is concur- 
rent the following rules shall apply : 

(a) The military authorities of the sending State shall have 
the primary right to exercise jurisdiction over a member of a 
force or of a civilian component in relation to 

(i) offences solely against the property or security of that 
State, or offences solely against the person or property of another 
member of the force or civilian component of that State or of a 
dependent ; 

(ii) offences arising out of any act or omission done in 
the performance of official duty. 

(b) In the case of any other offence the authorities of the 
receiving State shall have the primary right to exercise juris- 
diction. 

(c) If the State having the primary right decides not to 
exercise jurisdiction, it shall notify the authorities of the other 
State as soon as practicable. The authorities of the State having 
the primary right shall give sympathetic consideration to a re- 
quest from the authorities of the other State for a waiver of its 
right in cases where that other State considers such waiver to be 
of particular importance. 

4. The foregoing provisions of this Article shall not imply any 
right for the military authorities of the sending State to exer- 



270 

cise jurisdiction over persons who are nationals of or ordinarily 
resident in the receiving State, unless they are members of the 
force of the sending State. 

5. (a) The authorities of the receiving and sending States 
shall assist each other in the arrest of members of a force or 
civilian component or their dependents in the territory of the re- 
ceiving State and in handing them over to the authority which is 
to exercise jurisdiction in accordance with the above provisions. 

(b) The authorities of the receiving State shall notify 
promptly the military authorities of the sending State of the 
arrest of any member of a force or civilian component or a de- 
pendent. 

(c) The custody of an accused member of a force or civilian 
component over whom the receiving State is to exercise jurisdic- 
tion shall, if he is in the hands of the sending State, remain with 
that State until he is charged by the receiving State. 

6. (a) The authorities of the receiving and sending States 
shall assist each other in the carrying out of all necessary in- 
vestigations into offences, and in the collection and production of 
evidence, including the seizure and, in proper cases, the handing 
over of objects connected with an offence. The handing over of 
such objects may, however, be made subject to their return within 
the time specified by the authority delivering them. 

(b) The authorities of the Contracting Parties shall notify 
one another of the disposition of all cases in which there are con- 
current rights to exercise jurisdiction. 

7. (a) A death sentence shall not be carried out in the re- 
ceiving State by the authorities of the sending State if the legisla- 
tion of the receiving State does not provide for such punishment 
in a similar case. 

(b) The authorities of the receiving State shall give sym- 
pathetic consideration to a request from the authorities of the 
sending State for assistance in carrying out a sentence of im- 
prisonment pronounced by the authorities of the sending State 
under the provision of this Article within the territory of the 
receiving State. 

8. Where an accused has been tried in accordance with the pro- 
visions of this Article by the authorities of one Contracting Party 
and has been acquitted, or has been convicted and is serving, or 
has served, his sentence or has been pardoned, he may not be 
tried again for the same offence within the same territory by the 



271 

authorities of another Contracting Party. However, nothing in 
this paragraph shall prevent the military authorities of the send- 
ing State from trying a member of its force for any violation of 
rules of discipline arising from an act or omission which con- 
stituted an offence for which he was tried by the authorities of 
another Contracting Party. 

9. Whenever a member of a force or civilian component or a 
dependent is prosecuted under the jurisdiction of a receiving 
State he shall be entitled — 

(a) to a prompt and speedy trial ; 

(b) to be informed, in advance of trial, of the specific charge 
or charges made against him ; 

(c) to be confronted with the witnesses against him ; 

(d) to have compulsory process for obtaining witnesses in 
his favour, if they are within the jurisdiction of the receiving 
State ; 

(e) to have legal representation of his own choice for his 
defence or to have free or assisted legal representation under the 
conditions prevailing for the time being in the receiving State ; 

(f) if he considers it necessary, to have the services of a 
competent interpreter ; and 

(g) to communicate with a representative of the Govern- 
ment of the sending State and, when the rules of the court per- 
mit, to have such a representative present at his trial. 

10. (a) Regularly constituted military units of formations of 
a force shall have the right to police any camps, establishments, or 
other premises which they occupy as the result of an agreement 
with the receiving State. The military police of the force may take 
all appropriate measures to ensure the maintenance of order 
and security on such premises. 

(b) Outside these premises, such military police shall be em- 
ployed only subject to arrangements with the authorities of the 
receiving State and in liasion with those authorities, and in so 
far as such employment is necessary to maintain discipline and 
order among the members of the force. 

11. Each Contracting Party shall seek such legislation as it 
deems necessary to ensure the adequate security and protection 
within its territory of installations, equipment, property, records 
and official information of other Contracting Parties, and the 
punishment of persons who may contravene laws enacted for 
that purpose. 

******* 



272 

Article XV 

1. Subject to paragraph 2 of this Article, this Agreement shall 
remain in force in the event of hostilities to which the North 
Atlantic Treaty applies, except that the provisions for settling 
claims in paragraphs 2 and 5 of Article VIII shall not apply to 
war damage, and that the provisions of the Agreement, and, in 
particular of Articles III and VII, shall immediately be reviewed 
by the Contracting Parties concerned, who may agree to such 
modifications as they may consider desirable regarding the ap- 
plication of the Agreement between them. 

2. In the event of such hostilities, each of the Contracting 
Parties shall have the right, by giving 60 days' notice to the 
other Contracting Parties to suspend the application of any of the 
provisions of this Agreement so far as it is concerned. If this 
right is exercised, the Contracting Parties shall immediately con- 
sult with a view to agreeing on suitable provisions to replace the 
provisions suspended. 



APPENDIX II 

ICELAND. ANNEX TO DEFENSE 
AGREEMENT 1 

Annex to Defense Agreement between the United States and 
Iceland, May 8, 1951. 2 UST 1533, TIAS 2295. 

Article 1 

In this annex, the expression "United States Forces" includes 
personnel belonging to the armed services of the United States 
and accompanying civilian personnel who are in the employ of 
such services and are not nationals of nor ordinarily resident in 
Iceland, all such personnel being in the territory of Iceland in 
connection with operations under this Agreement. 2 

Article 2 

1. (a) The United States military courts will on no occasion 
have jurisdiction in Iceland over nationals of Iceland or other 
persons who are not subject to the military laws of the United 
States. 

(b) It is the duty of members of the United States forces 
and their dependents in Iceland to respect the laws of Iceland 
and to abstain from any activity inconsistent with the spirit of 
this Agreement, and, in particular, from any political activity in 
Iceland. The United States will take appropriate measures to 
that end. 

2. Subject to the provisions of this Article, 

(a) the military authorities of the United States shall have 
the right to exercise within Iceland all jurisdiction and control 
conferred on them by the laws of the United States over all per- 
sons subject to the military law of the United States. 

(b) the authorities of Iceland shall have jurisdiction over 
the members of the United States forces with respect to offenses 
committed within Iceland and punishable by the law of Iceland. 



1 Came into force on 8 May 1951, by signature. 

2 See p. 173 of 2 UST 1533, TIAS 2295. 



274 

3. (a) The military authorities of the United States shall have 
the right to exercise exclusive jurisdiction over persons subject to 
the military law of the United States with respect to offenses 
relating to its security, but not to that of Iceland, and to all 
acts punishable by the law of the United States, but not by the 
law of Iceland. 

(b) The authorities of Iceland shall have the right to exer- 
cise exclusive jurisdiction over members of the United States 
forces with respect to offenses relating to the security of Iceland, 
but not to the security of the United States, and to all acts 
punishable by the law of Iceland, but not by the law of the 
United States. 

(c) A security offense against Iceland or the United States 
shall include 

1. Treason 

2. Sabotage, espionage or violation of any law relating to 
official secrets of Iceland or the United States, or secrets relating 
to the national defense of Iceland or the United States. 

4. In cases where the right to exercise jurisdiction is con- 
current the following rules shall apply : 

(a) The military authorities of the United States shall have 
the primary right to exercise jurisdiction over a member of the 
United States forces in relation to 

1. Offenses solely against the property of the United States 
or offenses solely against the person or property of another mem- 
ber of the United States forces or of a dependent of a member 
of such force. 

2. Offenses arising out of any act done in the performance 
of official duty. 

(b) In the case of any other offense the authorities of Ice- 
land shall have the primary right to exercise jurisdiction. 

(c) If the United States or Iceland, whichever has the pri- 
mary right, decides not to exercise jurisdiction, it shall notify 
the authorities of the United States or Iceland, as the case may 
be, as soon as practicable. The authorities of the United States 
or of Iceland, whichever has the primary right, shall give sympa- 
thetic consideration to a request from the authorities of the 
United States or Iceland, as the case may be, for a waiver of its 
rights in cases where the authorities of the other country con- 
siders such waiver to be of particular importance. 



275 

5. A death sentence shall not be carried out in Iceland by the 
authorities of the United States. 

6. (a) The authorities of the United States and Iceland shall 
assist each other in the arrest of members of the United States 
forces and their dependents who commit offenses in Iceland and 
in handing them over to the authorities which are to exercise 
jurisdiction in accordance with the above provisions. 

(b) The authorities of Iceland shall notify promptly the 
military authorities of the United States of the arrest in Ice- 
land of any members of the United States forces or of their de- 
pendents. 

(c) The custody of an accused over whom Iceland is to exer- 
cise jurisdiction shall, if he is in the hands of the authorities of 
the United States, remain in the hands of such authorities until 
he is charged by Iceland. 

7. (a) If a member of the United States forces is accused of 
an offense the appropriate authorities of the United States and 
Iceland will render mutual assistance in the necessary investiga- 
tion into the offense and trial of the offender. 

(b) If the case is one within the jurisdiction of the United 
States, the authorities of Iceland will themselves carry out the 
necessary arrangements to secure the presence of and obtain 
evidence from Icelandic nationals and other persons in Iceland, 
except from members of the United States forces and their de- 
pendents, outside the agreed areas. In cases where it is necessary 
under the laws of the United States for the authorities of the 
United States to obtain themselves information from Icelandic 
nationals, the Icelandic authorities will make all possible arrange- 
ments to secure the attendance of such nationals for interroga- 
tion in the presence of Icelandic authorities at places designated 
by them. 

The military authorities will, in a similar manner, carry out 
the collection of evidence from members of the United States 
forces and their dependents in the case of an offense within the 
jurisdiction of the Icelandic authorities. 

(c) The authorities of the United States and of Iceland shall 
notify one another of the results of all investigations and trials 
in cases where there are concurrent rights to exercise juris- 
diction. 

8. Where a member of the United States forces or dependent 
of a member thereof has been tried by the authorities of the 



276 

United States and has been acquitted, or has been convicted and 
is serving or has served his sentence, he may not be tried again 
for the same offense by the authorities of Iceland. 

9. Whenever a member of the United States forces or a de- 
pendent of a member thereof is prosecuted under the jurisdiction 
of Iceland, he shall be entitled : 

(a) To a prompt and speedy trial ; 

(b) To be informed in advance of trial of the specific charge 
or charges made against him ; 

(c) To be confronted with the witnesses against him ; 

(d) To have compulsory process for obtaining witnesses in 
his favor, if within the jurisdiction of Iceland ; 

(e) To defense by a qualified advocate or counsel of his own 
choice, or, failing such choice, appointed to conduct his defense; 

(f ) If he considers it necessary, to have the services of a 
competent interpreter ; and 

(g) To communicate with a representative of his govern- 
ment and, when the rules of the court permit, to have such a 
representative present at his trial. 

10. The United States forces shall have the right to police the 
agreed areas and to take all appropriate measures to insure the 
maintenance of discipline, order and security in such areas. Out- 
side the agreed areas, military members of the United States 
forces shall be employed in police duties subject to arrangements 
with the authorities of Iceland and jointly with those authorities, 
and insofar as such employment is necessary to maintain dis- 
cipline and order among the members of the United States forces 
and the dependents of members thereof. 

The Icelandic authorities with whom members of the United 
States forces may be so employed shall have paramount authority 
with respect to the person or property of Icelandic nationals and 
other persons of non-Icelandic nationality, except members of 
the United States forces and their dependents and non-Icelandic 
employees of contractors of the United States, involved in any 
matter concerning the maintenance of order and discipline re- 
ferred to above outside the agreed areas. 



APPENDIX III 

THE NETHERLANDS. ANNEX TO AGREEMENT 
IMPLEMENTING NATO AGREEMENT 

Annex to Agreement between the United States and the Nether- 
lands, Implementing NATO agreement. August 13, 1954. 6 UST 
103, 106, TIAS 3174. 

With respect to paragraph 4 of the exchange of notes dated 
August 13, 1954, the United States Government and The Nether- 
lands Government have reached the following understandings be- 
tween them concerning the implementation in The Netherlands 
of the Agreement signed at London on June 19, 1951, Between 
the Parties to the North Atlantic Treaty Regarding the Status 
of Their Forces. 

1. The expression "dependent" in paragraph 1(c) of Article I 

also includes relatives who habitually reside with and are actually 

dependent on a member of a United States force or civilian 

component. 

******* 

3. The Netherlands authorities, recognizing that it is the pri- 
mary responsibility of the United States authorities to maintain 
good order and discipline where persons subject to United States 
military law are concerned, will, upon the request of the United 
States authorities, waive their primary right to exercise jurisdic- 
tion under Article VII, except where they determine that it is of 
particular importance that jurisdiction be exercised by the 
Netherlands authorities. The United States assumes the responsi- 
bility for custody pending trial. The United States authorities 
will make these people immediately available to Netherlands au- 
thorities upon their request for purposes of investigation and 
trial and will give full attention to any other special wishes of the 
appropriate Netherlands authorities as to the way in which 
custody should be carried out. 

4. The Netherlands Government confirms that persons subject 
to United States military law, prosecuted under Netherlands 



278 

jurisdiction, will be entitled to have a representative of the United 
States Government present during their trial, which will be public 
except when the court decrees otherwise in accordance with 
Netherlands law. 

5. In applying paragraph 10 (a) of Article VII to areas jointly 
used by the forces of the United States and The Netherlands, in- 
ternal security measures will be a matter of joint consultation 
between the authorities of these forces. 



APPENDIX IV 

GREECE. AGREEMENT IMPLEMENTING 
NATO AGREEMENT 

Agreement between the United States and Greece imple- 
menting the NATO Agreement. September 7, 1956. 7 UST 2556, 
TIAS 3649. 

Article I 
* ***** * 

2. "Agreement between the Parties of the North Atlantic 
Treaty Regarding the Status of Their Forces", dated June 19, 
1951, shall govern the status of the forces of the United States in 
Greece as well as members of these forces, members of the 
civilian component, and their dependents, who are in Greece and 
who are serving in that country in furtherance of objectives of the 
North Atlantic Treaty Organization, or who are temporarily 
present in Greece. 

Article II 

1. The Greek authorities, recognizing that it is the primary 
responsibility of the United States authorities to maintain good 
order and discipline where persons subject to United States mili- 
tary law are concerned, will, upon the request of the United 
States authorities, waive their primary right to exercise jurisdic- 
tion under Article VII, paragraph 3(c) of that Agreement, ex- 
cept when they determine that it is of particular importance that 
jurisdiction be exercised by the Greek authorities. 

2. In those cases where, in accordance with the foregoing para- 
graph, there is waiver of jurisdiction by the Greek authorities, 
the competent United States authorities shall inform the Greek 
Government of the disposition of each such case. 

Article III 

1. In such cases where the Government of Greece may exercise 
criminal jurisdiction as provided for in Article II above, the 



280 

United States authorities shall take custody of the accused pend- 
ing completion of trial proceedings. Custody of the accused will 
be maintained in Greece. During the trial and pretrial proceed- 
ings the accused shall be entitled to have a representative of the 
United States Government present. The trial shall be public un- 
less otherwise agreed. 



APPENDIX V 

TURKEY. AGREEMENT IMPLEMENTING 
NATO AGREEMENT 

Agreement between the United States and Turkey imple- 
menting the NATO Agreement. June 23, 1954. 5 UST 1465, 
TIAS 3020, 233 UNTS 192. 

For the implementation of the ' 'Agreement Between the Parties 
to the North Atlantic Treaty, Regarding the Status of their 
Forces," dated June 19, 1951, the two Governments have agreed 
as follows : 

1. All persons who are relatives of, and in accordance with 
United States laws or regulations, depending for support upon 
and actually residing with any member of a United States force 
or the civilian component, except those who are not United States 
citizens, shall also be considered dependents and will be treated in 
all respects as those persons defined in Article I, paragraph 1, 
sub-paragraph c, of the aforesaid NATO Agreement. 

2. For the purpose of the application of the aforesaid NATO 
Agreement and of the provisions of this Agreement, persons "who 
are in the employ of" the United States armed services, within 
the meaning of Article 1-1 (b) of the aforesaid NATO Agree- 
ment, and without prejudice to the other requirements of that 
Article, shall include employees of United States military organi- 
zations, employees of United States Government departments, 
Post Exchanges, and recreational organizations for military per- 
sonnel, Red Cross and United Services Organization personnel, 
and technical representatives of contractors with the United States 
forces who are assigned to United States military organizations 
in Turkey. All of these persons are subject to United States mili- 
tary law. Should any other specific categories become involved, 
the United States Government would wish to discuss their in- 
clusion in this paragraph with the authorities of the Turkish 
Government. 



APPENDIX VI 

GERMANY. CONVENTION ON RIGHTS AND 

OBLIGATIONS OF FOREIGN FORCES, 

AS AMENDED 1 

Convention between the United States, the United Kingdom, 
France and Germany on the Rights and Obligations of Foreign 
Forces and their Members, May 26, 1952, as Amended by Schedule 
II to the Protocol on the Termination of the Occupation Regime, 
October 23, 1954. 6 UST 4117, 5608, TIAS 3425. 

Article 1 

DEFINITIONS 

In the present Convention and the Annexes hereto the follow- 
ing terms shall be given the meanings hereinafter indicated : 

3|C SgC 3JC #|C Sf» 5JC 3JC 

7. Members of the Forces : 

a. Persons who, by reason of their military service relation- 
ship, are serving with the armed Forces of the Three Powers 
of other Sending State and are present in the Federal terri- 
tory (military personnel) ; 

b. Other persons who are in the service of such armed 
Forces or attached to them, with the exception of persons who 
are nationals neither of one of the Three Powers nor of another 
Sending State and have been engaged in the Federal territory; 
provided that any such other persons who are stationed out- 
side the Federal territory or Berlin shall be deemed to be 
members of the Forces only if they are present in the Federal 
Territory on duty (followers) . 

The following are considered "members of the Forces": de- 
pendents who are the spouses and children of persons defined in 



1 Terminated on 1 July 1963 with the coming into force of The Agreement 
on the Status of Forces in the Federal Republic of Germany, TIAS 5331. 
See next Appendix. 



284 

subparagraphs a and b of this paragraph or close relatives who 
are supported by such persons and for whom such persons are 
entitled to receive material assistance from the Forces. The 
definition "members of the Forces" shall include Germans only 
if they enlisted or were inducted into, or were employed by, the 
armed Forces of the Power concerned in the territory of that 
Power and at that time either had their permanent place of 
residence there or had been resident there for at least a year. 

8. Germans : Germans within the meaning of German law. 

9. Accommodation: Land, including all property permanently 
attached thereto, and all rights of use related to land, including 
such property, used or to be used by the Forces within the Federal 
territory. 

10. Installations: Land, buildings or part thereof, and all 
property permanently attached thereto, which, pursuant to the 
provisions of the present Convention, are allotted for the exclu- 
sive use or occupancy (im ausschliesslichen Besitz) of the Forces. 
This definition shall not apply to Article 20 of the present Con- 
vention. 

Article 2 

OBSERVANCE OF GERMAN LAW: 
POLITICAL ACTIVITY 

1. The members of the Forces shall observe German law, and 
the authorities of the Forces shall undertake and be responsible 
for the enforcement of German law against them, except as 
otherwise provided in the present or in any other applicable Con- 
vention or agreement. 

2. The members of the Forces shall abstain from any activity 

inconcistent with the spirit of the present Convention and shall 

in particular refrain from any political activity. 

******* 

Section I. Criminal Proceedings 

Article 6 

CRIMINAL OFFENCES: JURISDICTION AND 
APPLICABLE LAW 

1. Except as otherwise provided in the present Convention, the 
authorities of the Forces shall exercise exclusive criminal juris- 
diction over members of the Forces. A death sentence shall not 



285 

be carried out in the Federal territory by the authorities of the 
Forces as long as German law does not provide for such penalty. 
2. Where, under the law of the Power concerned, the service 
tribunals are not competent to exercise criminal jurisdiction over 
a member of the Forces, the German courts and authorities may 
exercise criminal jurisdiction over him in respect of an offense 
under German law committed against German interests, in ac- 
cordance with the following provisions : 

(a) No criminal proceedings, other than those provided for 
in Article 7 of the present Convention, or urgent preliminary in- 
vestigations, after consultation, as far as practicable, with the 
authorities of the Forces, shall be instituted by the German courts 
or authorities until the authorities of the Forces have been con- 
sulted by the appropriate German authorities and been given the 
opportunity, within twenty-one days from the receipt of informa- 
tion as to the facts involved, to make representations and recom- 
mendations in regard to the effect upon the security of the Forces 
of any such criminal proceedings; any such representations and 
recommendations shall be given due weight by the German courts 
or authorities. Such consultation shall, however, not be required 
where the alleged offence is one the penalty for which, under 
German law, is merely detention for not more than six weeks or 
a fine not exceeding DM 150 (tibertretung) , unless the German 
authorities consider that the security of the Forces is or might be 
involved in the case in question ; 

(b) The German courts and authorities shall, within the 
discretionary powers conferred on them by German law, abstain 
from prosecution in any case in which 

(i) such abstention is permitted by German law ; or 
(ii) the offender has been suitably punished by dis- 
ciplinary action of the authorities of the Forces ; 

(c) The German courts and authorities shall decide upon 
questions of arrest, detention and execution of punishment in ac- 
cordance with the provisions of German law. The authorities of 
the Forces shall execute any warrants of arrest and detention. 
An accused person so taken into custody by the authorities of the 
Forces shall remain in their custody until, by virtue of a final 
(rechtskraftig) judicial decision, he is released or sentenced. 
The authorities of the Forces will take appropriate measures to 
prevent any prejudice to the course of justice (Verdunkelungs- 
gefaht). They will hold an accused person so taken into custody 



286 

at the disposal of the German courts and authorities, will grant 
access to him at any time by the German courts and authorities 
and on request present him to the German courts and authorities 
for the purposes of investigatory proceedings, trial and the serv- 
ing of any sentence which may be imposed. Where an accused 
person is not taken into custody, the authorities of the Forces will 
take measures to ensure that he is at the disposal of the German 
courts or authorities for the purposes aforesaid ; 

(d) Any sentence of imprisonment shall be served in a 
German penal institution. For the purposes of this paragraph, 
the expression "offence under German law committed against 
German interests" shall mean any offence under German law 
other than an offence directed against the Forces, their members, 
or the property of the Forces or their members. 

3. The exclusive jurisdiction of the German authorities over 
persons who are subject to German criminal jurisdiction shall in- 
clude those cases in which the criminal offence is directed against 
the Forces, their members, or the property of the Forces or their 
members. 

4. With the consent of the German authorities the authorities 
of the Forces may transfer to German courts or authorities, for 
investigation, trial and decision, groups of, or particular, cases 
for which they are exclusively competent under paragraph 1 of 
this Article. 

5. With the consent of the authorities of the Forces, the Ger- 
man authorities may transfer to the authorities of the Forces for 
investigation, trial and decision, particular cases of the nature 
described in paragraph 3 of this Article in which the alleged 
offender is not a German. 

6. In cases under paragraphs 1 and 5 of this Article, the au- 
thorities of the Forces will apply their own law. If such cases 
involve acts which are punishable under German law, but not 
under the law of the Power concerned, German law shall apply. 

POSTWAR SETTLEMENTS 

7. In cases under paragraphs 3 and 4 of this Article, German 
law shall apply. 

Article 7 

ARREST, SEARCH AND SEIZURE 
1. Members of the Forces who properly identify themselves by 



287 

means of an identity document issued under Article 24 of the 
present Convention shall not be subject to arrest by German 
authorities. 

2. German authorities may, however, take into custody a mem- 
ber of the Forces, without subjecting him to the ordinary routine 
of arrest, in order immediately to deliver him, together with any 
weapons or items seized, to the nearest appropriate authorities 
of the Forces. 

(a) when so requested by the authorities of the Forces ; 

(b) in the following cases in which the authorities of the 
Forces are unable to act with the necessary promptness : 

(i) when apprehended in flagrante delicto 

(1) for the commission or attempted commission of a 
criminal offence which results or might result in serious injury 
to persons or property, or serious impairment of other legally 
protected rights (Rechtsgiiter) ; or 

(2) insofar as this appears necessary to abate an al- 
ready existing serious disturbance of public order ; 

(ii) if there is danger of flight, for the commission or at- 
tempted commission of espionage to the prejudice of the Federal 
Republic. 

3. (a) The German authorities may search a member of the 
Forces or the property in his immediate possession 

(i) when so requested by the authorities of the Forces ; 

(ii) if he is taken into custody under paragraph 2 of this 
Article, to the extent necessary to disarm him or to seize any item 
constituting proof of the criminal offence for which he is taken 
into custody. 

(b) The provisions of the fourth sentence of paragraph 5 
of Article 35 of the present Convention shall not be affected. 

(c) The official quarters of a member of the Forces, or where 
there are none the residence occupied by him with permission 
of the authorities of the Forces, may not be searched by German 
authorities, except at the request of the authorities of the Forces. 
If such residence of the member of the Forces is not an installa- 
tion, either his consent or that of the authorities of the Forces 
to the search shall be sufficient. 

4. The German authorities shall notify the appropriate authori- 
ties of the Forces of the arrest of any person working in the 
service of the Forces. 

5. The appropriate authorities of the Forces may 



288 

(a) arrest members of the Forces ; 

(b) take into custody a person who is subject to German 
criminal jurisdiction, without subjecting him to the ordinary 
routine of arrest, in order immediately to deliver him, together 
with any weapons or items seized, to the nearest appropriate 
German authorities 

(i) when so requested by the German authorities ; 
(ii) in the following cases in which the German authori- 
ties are unable to act with the necessary promptness : 

(1) when apprehended in flagrante delicto for the com- 
mission or attempted commission of a criminal offense against the 
Forces, their members, or the security, property or other legally 
protected rights (Rechtsguter) of the Forces or their members; or 

(2) if there is danger of flight, for the commission, or 
attempted commission, of a criminal offense under Sections 1 to 9 
inclusive of Annex A to the present Convention ; 

(iii) within an installation, when there are reasonable 

grounds to believe (dringender Verdacht) that his presence is 

unauthorized or that he has committed a criminal offence within 

the installation. 

******* 

Article 8 

PROCEDURE AND CO-OPERATION IN 
CRIMINAL PROCEEDINGS 

1. The authorities of the Forces shall take such measures 
against members of the Forces who have committed criminal 
offences against German interests as they would take if such 
offences had been committed against the Power concerned, the 
Forces or their members, or their property. 

2. The German authorities shall take such measures against 
persons subject to their criminal jurisdiction for criminal offences 
against the Forces, their members, or the property of the Forces 
or members, as they would take if such offences had been com- 
mitted against the Federal Republic, its Lander or its nationals, 
or their property. 

3. (a) The authorities of the Forces shall at the request of the 
German authorities notify the latter of the arrest of any person 
for a criminal offence described in paragraph 1 of this Article. 

(b) The German authorities shall at the request of the au- 
thorities of the Forces notify the latter of the arrest of any per- 



289 

son for a criminal offence described in paragraph 2 of this 
Article. 

4. Trial of a member of the Forces for a criminal offence de- 
scribed in paragraph 1 of this Article, committed within the 
Federal territory, shall be held within that territory except in 
cases of military exigency. When military exigency requires that 
the trial of such an offence be held outside the Federal territory, 
the authorities of the Forces shall so inform the German authori- 
ties, with particulars of the time and place of trial. The German 
authorities shall be entitled to have observers present unless 
security considerations require otherwise and shall be informed 
of the result of the trial. 

5. The German authorities and the authorities of the Forces 
shall extend mutual co-operation in the prosecution of criminal 
offences under paragraphs 1 and 2 of this Article. Unless 
security considerations require otherwise, they shall permit repre- 
sentatives of the appropriate authorities to attend the trial and, 
within the applicable regulations, grant them the opportunity to 
present their views on questions of law and fact. In addition to 
the cases provided under German criminal procedure, the Forces 
or their members shall also have the right to appear as co- 
prosecutors (Nebenklager) before German courts, to the extent 
that the criminal offence is directed against the security or the 
property of the Forces or their members or is one of the offences 
listed in Annex A to the present Convention. On request the 
German authorities and the authorities of the Forces shall inform 
each other of an intent to initiate, to refrain from initiating, or 
to discontinue a prosecution or disciplinary proceeding and of 

the decision. 

******* 

Article 11 

PRESENCE IN COURT. WITNESSES. 
SERVICE OF PROCESS 

1. The authorities of the Forces shall, unless military exigency 
requires otherwise, secure the attendance of members of the 
Forces whose presence is required by a German court or au- 
thority, provided that such appearance is compulsory under Ger- 
man law. If military exigency prevents such attendance, the 
authorities of the Forces shall furnish a certificate stating the 
basis and duration of such disability. 



290 

2. German courts and authorities shall, in accordance with the 
provisions of German law, secure the attendance of persons whose 
presence as witnesses or experts is required by a service tribunal 
or other authority of the Forces. 

3. The provisions of paragraphs 1 and 2 of this Article shall 
apply mutatis mutandis to all proceedings requiring the produc- 
tion of evidence. 

4. Subject to the provisions of the present Convention or any 
other applicable agreement, the privileges and immunities of 
witnesses and experts before German courts or authorities, and 
service tribunals or authorities of the Forces, shall be those ac- 
corded by the law of the court, tribunal or authority concerned. 
Appropriate consideration shall also be given to the privileges and 
immunities which the witness or expert would have before a 
German court if he is not a member of the Forces, or, if he is a 
member of the Forces, before a service tribunal of the Power 
concerned. 

5. The authorities of the Forces shall permit, or themselves 
effect, the service of process upon any person inside an installa- 
tion, and upon members of the Forces. In all other cases service 
shall be made or permitted by the appropriate German courts or 
authorities. 

6. Service by German courts and authorities on members of the 
Forces shall not be effected by publication or advertisement. 

Article 12 

OBSTRUCTION OF JUSTICE 

Perjury, attempts to obstruct justice, any other criminal 
offences and contempts committed before or against a German 
court or authority or a service tribunal or authority of the Forces, 
and failure to comply with process duly served in accordance with 
Article 11 of the present Convention shall be dealt with by the 
court or authority having criminal jurisdiction or disciplinary 
authority over the person concerned, according to its own law, as 
if the act had been committed before or against its own courts 

or authorities. 

******* 

Article 16 
OFFICIAL ACTS 
1. Whenever, in a criminal or noncriminal proceeding before a 



291 

German court or authority, it becomes necessary to determine 
whether the act or omission which is the subject of the pro- 
ceeding occurred in the performance by the person concerned of 
official duty for the Forces, the German court or authority shall 
suspend the proceeding and shall promptly notify the authorities 
of the Forces, stating the facts of the case. The appropriate au- 
thority of the Forces shall investigate the case and within 
twenty-one days after receipt of the notification transmit to the 
German court or authority a certificate describing the scope of 
the official duties of the person concerned at the relevant time 
and place. The certificate shall be signed by the highest ranking 
representative of the Forces having personal knowledge of the 
matter. The authorities of the Forces shall take appropriate 
measures to ensure that the certificate is compiled conscientiously 
as to form and content. After receipt of the certificate, but no 
later than twenty-one days after receipt by the authorities of the 
Forces of the notification, the proceeding shall be continued. 

2. The authorities of the Forces may also submit such certifi- 
cate to a German court or authority without having received a 
notification from such court or authority. 

3. Such certificate shall be evidence only on the scope of 
official duties of the person concerned and shall be conclusive to 
this extent. The person who issued such certificate may, however, 
be called as a witness to explain or amplify its contents; and 
further, the provisions of this paragraph shall not be applied in 
such manner as to limit the constitutional rights of a party to a 
proceeding to testify or make a factual or legal statement on his 
own behalf. The German court or authority shall give to the fact 
that the act or omission constituted the performance of official 
duty such legal weight and effect as it is entitled to under 
German law. 



APPENDIX VII 

GERMANY. AGREEMENT SUPPLEMENTING 
NATO AGREEMENT 1 

Agreement to supplement the Agreement between the Parties 
to the North Atlantic Treaty regarding the Status of their 
Forces with respect to Foreign Forces stationed in the Federal 
Republic of Germany of August 3, 1959. 

Article 1 

The Agreement between the Parties to the North Atlantic 
Treaty regarding the Status of their Forces, signed at London 
on 19 June 1951 (hereinafter referred to as the "NATO Status 
of Forces Agreement"), shall, as regards the rights and obliga- 
tions of the forces of the Kingdom of Belgium, Canada, the 
French Republic, the Kingdom of the Netherlands, the United 
Kingdom of Great Britain and Northern Ireland and the United 
States of America in the territory of the Federal Republic of 
Germany (hereinafter referred to as "the Federal Republic"), be 
supplemented by the provisions of the present Supplementary 
Agreement. 

Article 2 

1. In the present Agreement the term 

(a) "a German" shall mean a German within the meaning 

of German law ; 

******* 

2. (a) A close relative of a member of a force or of a civilian 
component not falling within the definition contained in sub- 
paragraph (c) of paragraph 1 of Article I of the NATO Status 
of Forces Agreement who is financially or for reasons of health 
dependent on, and is supported by, such member, who shares the 
quarters occupied by such member and who is present in the 
Federal territory with the consent of the authorities of the force 



In force 1 July 1963. TIAS 5351. 



294 

shall be considered to be, and treated as, a dependent within the 
meaning of that provision. 

(b) Should a member of a force or of a civilian component 
die or leave the Federal territory on transfer, the dependents of 
such member, including close relatives referred to in sub- 
paragraph (a) of this paragraph, shall be considered to be, and 
treated as, dependents within the meaning of sub-paragraph (c) 
of paragraph 1 of Article I of the NATO Status of Forces Agree- 
ment for a period of ninety days after such death or transfer if 
such dependents are present in the Federal territory. 

Article 3 

******* 

7. If, in the implementation of the NATO Status of Forces 
Agreement and of the present Agreement, no agreement is 
reached either on the local or on the regional level between the 
German authorities and the authorities of a force, the matter 
shall, unless the NATO Status of Forces Agreement or the 
present Agreement provides a special procedure, be referred to 
the competent central Federal authority and the higher authority 
of the force. The Federal Government of the higher authority 
of the force shall issue any individual instructions that may be 
necessary to the German authorities or to the authorities of the 
force and the civilian component respectively. 

Article 17 

1. Where, in order to decide upon the authority competent to 
exercise jurisdiction with respect to an offence, it is necessary 
to determine whether an act is punishable by the law of a sending 
State, the German court or authority dealing with the case shall 
suspend the proceedings and shall notify the competent authority 
of the sending State. The appropriate authority of the sending 
State may, within twenty-one days after receipt of the notifica- 
tion, or at any time if such notification has not yet been made, 
submit to the German court or authority a certificate stating 
whether or not the act is punishable by the law of the sending 
State. If the certificate is affirmative on this point, it shall specify 
the provision or legal basis under which the act is punishable, as 
well as the penalty prescribed. 

2. The German court or authority shall make its decision in 
conformity with the certificate. In exceptional cases, however, 



295 

such certificate may, at the request of the German court or au- 
thority, be made the subject of review through discussions be- 
tween the Federal Government and the diplomatic mission in the 
Federal Republic of the sending State. 

3. If it is to be determined whether an offence is punishable 
under German law, the procedure provided in paragraphs 1 and 
2 of this Article shall apply mutatis mutandis with respect to the 
offence, the certificate being then issued by the supreme com- 
petent administrative authority of the Federal Republic or of the 
German Land concerned. 

4. The provisions of paragraphs 1, 2 and 3 of this Article 
shall not apply as between the Federal Republic and any sending 
State which informs the Federal Republic that it does not intend 
to avail itself of these provisions or to extend the benefits thereof 
to the Federal Republic. 

Article 18 

1. Whenever, in the course of criminal proceedings against a 
member of a force or of a civilian component, it becomes neces- 
sary to determine whether an offence has arisen out of any act 
or omission done in the performance of official duty, such deter- 
mination shall be made in accordance with the law of the sending 
State concerned. The highest appropriate authority of such send- 
ing State may submit to the German court or authority dealing 
with the case a certificate thereon. 

2. The German court or authority shall make its decision in 
conformity with the certificate. In exceptional cases, however, 
such certificate may, at the request of the German court or au- 
thority, be made the subject of review through discussions be- 
tween the Federal Government and the diplomatic mission in the 
Federal Republic of the sending State. 

Article 19 

1. At the request of a sending State, the Federal Republic shall, 
within the framework of sub-paragraph (c) of paragraph 3 of 
Article VII of the NATO Status of Forces Agreement, waive in 
favour of that State the primary right granted to the German 
authorities under sub-paragraph (b) of paragraph 3 of that 
Article in cases of concurrent jurisdiction, in accordance with 
paragraphs 2, 3, 4 and 7 of this Article. 

2. Subject to any particular arrangements which may be 



296 

made under paragraph 7 of this Article, the military authorities 
of the sending States shall notify the competent German authori- 
ties of individual cases falling under the waiver provided in 
paragraph 1. 

3. Where the competent German authorities hold the view that, 
by reason of special circumstances in a specific case, major in- 
terests of German administration of justice make imperative the 
exercise of German jurisdiction, they may recall the waiver 
granted under paragraph 1 of this Article by a statement to the 
competent military authorities within a period of twenty-one days 
after receipt of the notification envisaged in paragraph 2 or any 
shorter period which may be provided in arrangements made 
under paragraph 7. The German authorities may also submit 
the statement prior to receipt of such notification. 

4. If, pursuant to paragraph 3 of this Article, the competent 
German authorities have recalled the waiver in a specific case and 
in such case an understanding cannot be reached in discussions 
between the authorities concerned, the diplomatic mission in the 
Federal Republic of the sending State concerned may make repre- 
sentations to the Federal Government. The Federal Government, 
giving due consideration to the interests of German administra- 
tion of justice and to the interests of the sending State, shall re- 
solve the disagreement in the exercise of its authority in the field 
of foreign affairs. 

5. (a) With the consent of the German authorities, the mili- 
tary authorities of a sending State which has requested the 
waiver under paragraph 1 of this Article may transfer to the 
German courts or authorities for investigation, trial and deci- 
sion, particular criminal cases in which jurisdiction rests with 
that State. 

(b) With the consent of the military authorities of a send- 
ing State which has requested the waiver under paragraph 1 of 
this Article, the German authorities may transfer to the military 
authorities of that State for investigation, trial and decision, 
particular criminal cases, in which jurisdiction rests with the 
Federal Republic. 

6. (a) Where a German court or authority exercises exclusive 
jurisdiction under sub-paragraph (b) of paragraph 2 of Article 
VII of the NATO Status of Forces Agreement, a copy of any docu- 
ment served on the accused shall be delivered, upon special or 



297 

general request of the sending State concerned, to the liaison 
agency referred to in Article 32 of the present Agreement. 

(b) The liaison agency shall lend its assistance to the Ger- 
man courts and authorities to facilitate service of process in 
criminal matters. 

7. In the implementation of the provisions of this Article and 
to facilitate the expeditious disposal of offences of minor im- 
portance, arrangements may be made between the military au- 
thorities of a sending State or States and the competent German 
authorities. These arrangements may also extend to dispensing 
with notification and to the period of time referred to in para- 
graph 3 of this Article within which the waiver may be recalled. 

Article 20 

1. The military authorities of a sending State may, without a 
warrant of arrest, take into temporary custody any person not 
subject to their jurisdiction 

(a) if such person is caught or pursued in flagrante delicto 
and either 

(i) the identity of the person cannot be established im- 
mediately, or 

(ii) there is reason to believe that the person may flee 
from justice; or 

(b) if so requested by a German authority, or 

(c) if such person is a member of the force or of the 
civilian component of another sending State, or a dependent of 
any such member, upon request by an authority of that State. 

2. If there is danger in delay and a German public prosecutor 
or German police officer cannot be called in time, the military 
authorities of a sending State may, without a warrant of arrest, 
take into temporary custody a person not subject to their juris- 
diction if there are strong reasons to suspect (dringender 
Verdacht) that such person has committed or is making a 
punishable attempt to commit an offence within, or directed 
against, an installation of that State, or an offence punishable 
under Article 7 of the Fourth Law Amending the Criminal Law 
dated 11 June 1957 (Bundesgesetzblatt Teil I, page 597) in con- 
junction with Sections 99, 100, 100c, lOOd, lOOe, 109f, 109g and 
363, of the German Criminal Code, or under such legislation as 
may replace these provisions in future. This provision shall apply 
only if the person in question is a fugitive from justice or in 



298 

hiding or if there are good reasons to fear that he is seeking to 
evade criminal proceedings consequent upon the commission of 
such offence or punishable attempt. 

3. In cases falling within paragraph 1 or 2 of this Article the 
military authorities may, to such extent as may be necessary, dis- 
arm the person so taken into temporary custody, and may search 
him and seize any items in his possession which may serve as 
evidence for the purposes of the investigation of the suspected or 
alleged offence. 

4. The military authorities shall, without delay, deliver any 
person taken into temporary custody in accordance with this 
Article, together with any weapons or other items so seized, to 
the nearest German public prosecutor or police officer or judge or 
to the military authorities of the sending State to whose force 
or civilian component the person belongs either as a member or 
as a dependent of such member. 

5. The provisions of this Article shall not affect the constitu- 
tional immunities of the parliaments of the Federation and the 
Lander. 

Article 21 

1. Where an investigation is initiated or an arrest made by a 
German authority in respect of an act punishable under Article 7 
of the Fourth Law Amending the Criminal Law dated 11 June 
1957 (Bundesgesetzblatt Teil I, page 597) or under such legisla- 
tion as may replace that Article in future, the German authorities 
conducting the investigations shall notify the military authorities 
of the sending State concerned without delay. The same shall 
apply if a German authority initiates an investigation or makes 
an arrest in respect of an act otherwise directed against the 
security of a sending State or of its force. 

2. Where an investigation is initiated or an arrest made in the 
Federal territory by a competent authority of a sending State in 
respect of an act committed in the Federal territory and relating 
to matters affecting the security of the Federal Republic, this 
authority shall inform the German authorities without delay. 

Article 22 

1. (a) Where jurisdiction is exercised by the authorities of a 
sending State, custody of members of the force, of the civilian 
component, or dependents shall rest with the authorities of 
that State. 



299 

(b) Where jurisdiction is exercised by the German authori- 
ties, custody of members of a force, of a civilian component, or 
dependents shall rest with the authorities of the sending State 
in accordance with paragraphs 2 and 3 of this Article. 

2. (a) Where the arrest has been made by the German au- 
thorities, the arrested person shall be handed over to the authori- 
ties of the sending State concerned if such authorities so request. 

(b) Where the arrest has been made by the authorities of a 
sending State, or where the arrested person has been handed over 
to them under sub-paragraph (a) of this paragraph, they 

(i) may transfer custody to the German authorities at 
any time ; 

(ii) shall give sympathetic consideration to any request 
for the transfer of custody which may be made by the German 
authorities in specific cases. 

(c) In respect of offences directed solely against the security 
of the Federal Republic, custody shall rest with the German au- 
thorities in accordance with such arrangements as may be made 
to that effect with the authorities of the sending State concerned. 

3. Where custody rests with the authorities of a sending State 
in accordance with paragraph 2 of this Article, it shall remain 
with these authorities until release or acquittal by the German 
authorities or until commencement of the sentence. The authori- 
ties of the sending State shall make the arrested person available 
to the German authorities for investigation and criminal pro- 
ceedings (Ermittlungs- und Strafverfahren) and shall take all 
appropriate measures to that end and to prevent any prejudice to 
the course of justice (Verdunkelungsgefahr) . They shall take full 
account of any special request regarding custody made by the 
competent German authorities. 

Article 23 

Where a person is arrested in any case referred to in para- 
graph 1 of Article 21 of the present Agreement, a representative 
of the sending State concerned shall have access to that person. 
Where a person arrested in any case referred to in paragraph 2 
of that Article is held in custody by the authorities of a force, a 
German representative shall have a corresponding right to the 
extent to which the sending State avails itself of the right of 
access afforded by the first sentence of this Article. The German 
authorities and the military authorities of the sending State shall 



300 

conclude such arrangements as may be required for the imple- 
mentation of this Article. A representative of the State which has 
custody may be present when the right of access is exercised. 

Article 24 

At the request of the Federal Republic or of a sending State, 
the German authorities and the authorities of that State shall 
conclude arrangements to facilitate the fulfillment of the obliga- 
tion of mutual assistance provided for in sub-paragraph (a) of 
paragraph 5 and sub-paragraph (a) of paragraph 6 of Article 
VII of the NATO Status of Forces Agreement. 

Article 25 

1. (a) Where criminal jurisdiction over a member of a force 
or of a civilian component or a dependent is exercised by a Ger- 
man court or a German authority, a representative of the sending 
State concerned shall have the right to attend the trial. Where 
an offence is solely directed against the security of the Federal 
Republic, or against any property within the Federal Republic, 
or against a German or a person present in the Federal territory, 
and jurisdiction is exercised in the Federal Republic by a court 
or authority of a sending State, a German representative shall 
have the right to attend the trial. 

(b) For the purpose of the provisions set forth in sub- 
paragraph (a) of this paragraph 

(i) the expression ''property within the Federal Republic" 
shall not include property belonging either to a force or a civilian 
component or to a member of a force or of a civilian component 
or to a dependent ; 

(ii) the expression "a person present in the Federal terri- 
tory" shall not include a member of a force or of a civilian com- 
ponent or a dependent. 

(c) The provisions set forth in sub-paragraph (a) of this 
paragraph shall not apply if the attendance of a national repre- 
sentative is incompatible with the security requirements of the 
State exercising jurisdiction which are not at the same time 
security requirements of the other State. 

(d) German courts and authorities on the one hand, and the 
courts and authorities of the sending State on the other hand, 
shall give each other timely notification of place and time of the 
trial. 



301 

2. Under the conditions stated in paragraph 1 of this Article a 
representative of the sending State shall also have a right to at- 
tend interrogations and other pre-trial investigations to such ex- 
tent as may be agreed between the authorities of that State and 
those of the Federal Republic. If such arrangements are con- 
cluded, they shall, under the conditions stated in paragraph 1, 
give to a German representative a right corresponding to that of 
the representative of the sending State, and shall provide pro- 
cedures for reciprocal notification. 

Article 26 

1. Where a member of a force or of a civilian component or a 
dependent is arraigned before a court of a sending State for an 
offence committed in the Federal territory against German in- 
terests, the trial shall be held in that territory 

(a) except where the law of the sending State requires 
otherwise, or 

(b) except where, in cases of military exigency or in the in- 
terests of justice, the authorities of the sending State intend to 
hold the trial outside the Federal territory. In this event they 
shall afford the German authorities timely opportunity to com- 
ment on such intention and shall give due consideration to any 
comments the latter may make. 

2. Where the trial is held outside the Federal territory, the 
authorities of the sending State shall inform the German au- 
thorities of the place and date of the trial. A German representa- 
tive shall be entitled to be present at the trial, except where his 
presence is incompatible with the rules of the court of the send- 
ing State or with the security requirements of that State, which 
are not at the same time security requirements of the Federal 
Republic. The authorities of the sending State shall inform the 
German authorities of the judgment and of the final outcome of 
the proceedings. 

Article 27 

Sections 212 to 212(b) of the German Code of Criminal Pro- 
cedure, relating to expedited procedure, shall not be applicable in 
criminal proceedings against members of a force, of a civilian 
component, or against dependents. 

Article 28 
1. The military police of a force shall have the right to patrol 



302 

on public roads, on public transport, in restaurants (Gaststatten) 
and in all other places to which the public has access and to take 
such measures with respect to the members of a force, of a civilian 
component or dependents as are necessary to maintain order and 
discipline. Insofar as it is necessary or expedient the details of 
the exercise of this right shall be agreed upon between the Ger- 
man authorities and the authorities of the force, who shall main- 
tain close mutual liaison. 

2. If public order and safety are endangered or disturbed by 
an incident in which members of a force or of a civilian com- 
ponent or dependents are involved, the military police of a force 
shall, if so requested by the German authorities, take appropriate 
measures with respect to such persons to maintain or restore 
order and discipline. 

Article 29 

1. The Federal Republic shall bring about such legislative 
measures as it deems necessary to ensure the adequate security 
and protection within its territory of the forces, of the civilian 
components and of their members. This shall also apply to the 
Armed Forces of a sending State stationed in Berlin, to the 
civilian component thereof and to their members with regard to 
offences committed within the Federal territory. 

2. To implement paragraph 11 of Article VII of the NATO 
Status of Forces Agreement and paragraph 1 of this Article the 
Federal Republic shall, in particular, 

(a) ensure, in accordance with the provisions of German 
criminal law on treason, the protection of military secrets of the 
sending States ; 

(b) ensure, by way of criminal law, the protection of a 
force, a civilian component and their members to an extent not 
inferior to the protection which is or will be afforded to the 
German Armed Forces in the following fields : 

(i) influencing the force, the civilian component or their 
members with intent to undermine their willingness to serve ; 

(ii) exposing the force to contempt ; 

(iii) inducement to disobedience ; 

(iv) inducement to desertion ; 

(v) facilitation of desertion ; 

(vi) sabotage; 

(vii) collection of information concerning military mat- 
ters; 



303 

(viii) operation of a military intelligence service ; 

(ix) reproduction or description of military equipment, 
military installations or facilities, or of military activities ; 

(x) taking of aerial photographs. 
3. For the purposes of sub-paragraph (a) of paragraph 2 of 
this Article, the term "military secrets" shall mean such facts, 
objects, conclusions and discoveries, in particular writings, draw- 
ings, models, formulae, or information about them, as concern 
defence and are kept secret by an agency of a sending State 
located on Federal territory or in Berlin out of consideration for 
the security of that State or of its force, or its Armed Forces 
stationed in Berlin. The term shall not include objects in respect 
of which the decision about keeping them secret is a matter for 
the Federal Republic, or information concerning such objects. 

Article 30 

To facilitate the implementation of Article VII of the NATO 
Status of Forces Agreement and the provisions of the present 
Agreement supplementary thereto and to ensure their uniform 
application, Mixed Commissions composed of a German repre- 
sentative to be appointed by the Federal Government and a repre- 
sentative of the sending State concerned shall be constituted at 
the request of either party. The task of these Mixed Commissions 
shall be to discuss questions submitted to them by the Federal 
Government or the highest authority of the force concerned with 
respect to the application of the provisions referred to in this 
Article. The German authorities and the authorities of the send- 
ing State shall give sympathetic consideration to any joint recom- 
mendation made by a Mixed Commission. 

******* 

Article 37 

1. (a) Where a member of a force or of a civilian component 
is summoned to appear before a German court or authority, the 
military authorities, unless military exigency requires otherwise, 
shall secure his attendance provided that such attendance is com- 
pulsory under German law. The liaison agency shall be requested 
to ensure execution of such summons. 

(b) The provisions of sub-paragraph (a) of this paragraph 
shall apply mutatis mutandis to dependents insofar as the mili- 
tary authorities are able to secure their attendance; otherwise 
dependents will be summoned in accordance with German law. 



304 

2. Where persons whose attendance cannot be secured by the 
military authorities are required as witnesses or experts by a 
court or a military authority of a sending State, the German 
courts and authorities shall, in accordance with German law, 
secure the attendance of such persons before the court or mili- 
tary authority of that State. 

Article 38 

1. If in the course of criminal or non-criminal proceedings or 
hearings before a court or authority of a force or of the Federal 
Republic it appears that the disclosure of an official secret of 
either of the States concerned, or the disclosure of any informa- 
tion which could prejudice the security of either of them might 
result, the court or the authority shall, prior to taking further 
action, seek the written consent of the appropriate authority to 
the disclosure of the official secret or information. In the event 
that the appropriate authority advances considerations against 
disclosure, the court or authority shall take all steps in its power, 
including those to which paragraph 2 of this Article relates, to 
prevent such disclosure, provided no constitutional right of any 
party to the proceedings is thereby impaired. 

2. The provisions of Sections 172 to 175 of the German Judica- 
ture Act (Gerichtsverfassungsgesetz) on the exclusion of the 
public from hearings in criminal and non-criminal proceedings, 
and of Section 15 of the German Code of Criminal Procedure on 
the transfer of criminal proceedings to a court in a different dis- 
trict, shall be applied mutatis mutandis in cases before German 
courts and authorities where there is a threat to the security of a 
force or of a civilian component. 

Article 39 

Privileges and immunities of witnesses and experts shall be 
those accorded by the law of the court or authority before which 
they appear. The court or authority shall, however, give ap- 
propriate consideration to the privileges and immunities which 
witnesses and experts, if they are members of a force or of a 
civilian component, or dependents, would have before a court of 
the sending State or, if they do not belong to these categories of 
persons, would have before a German court. 

3(C 3f» ^B *J% 3(C 3JC 3fC 

Article 53 
1. Within accommodation made available for its exclusive use, 



305 

a force or a civilian component may take all the measures neces- 
sary for the satisfactory fulfillment of its defence responsibilities. 
Within such accommodation, the force may apply its own regula- 
tions in the fields of public safety and order where such regula- 
tions prescribe standards equal to or higher than those prescribed 
in German law. 

2. The first sentence of paragraph 1 of this Article shall apply 
mutatis mutandis to measures taken in the air space above ac- 
commodation, provided that measures which might interfere with 
air traffic are taken only in coordination with the German au- 
thorities. The provisions of paragraph 7 of Article 57 of the 
present Agreement shall remain unaffected. 

3. In carrying out the measures referred to in paragraph 1 of 
this Article, the force or the civilian component shall ensure that 
the German authorities are enabled to take, within the accom- 
modation, such measures as are necessary to safeguard German 
interests. 

4. The German authorities and the authorities of the force or 
of the civilian component shall co-operate to ensure the smooth 
implementation of the measures referred to in paragraphs 1, 2 
and 3 of this Article. The details of such co-operation are set 
forth in paragraphs 5 to 7 of the Section of the Protocol of 
Signature referring to this Article. 

5. Where accommodation is used jointly by a force or a civilian 
component and the German Armed Forces or German civilian 
agencies, the regulations required for such use shall be laid down 
in administrative agreements or in special agreements in which 
appropriate consideration shall be given to the position of the 
Federal Republic as receiving State as well as to the defence 
responsibilities of the force. 

6. In order to enable a force or a civilian component satis- 
factorily to fulfil its defence responsibilities, the German authori- 
ties shall take appropriate measures, at the request of the force to 

(a) establish restricted areas (Schutzbereiche) ; 

(b) supervise or restrict construction, cultivation and move- 
ment in the vicinity of accommodation made available to the force 
for its use. 



Article 71 
1. The non-German non-commercial organizations listed in 



306 

paragraph 2 of the Section in the Protocol of Signature referring 
to this Article shall be considered to be, and treated as, integral 
parts of the force. 

2. (a) The non-German non-commercial organizations listed 
in paragraph 3 of the Section in the Protocol of Signature re- 
ferring to this Article shall enjoy the benefits and exemptions ac- 
corded to the force by the NATO Status of Forces Agreement 
and the present Agreement to the extent necessary for the ful- 
fillment of the purposes described in paragraph 3 of that Section. 
However, benefits and exemptions in respect of imports for, de- 
liveries to, or services for these organizations shall be granted 
only if such imports, deliveries or services are effected through 
the authorities of the force or of the civilian component or 
through official procurement agencies designated by these au- 
thorities. 

(b) The organizations referred to in sub-paragraph (a) of 
this paragraph shall not have the powers enjoyed by the authori- 
ties of a force or of a civilian component under the NATO Status 
of Forces Agreement and the present Agreement. 

4. Other non-German non-commercial organizations may, in 
specific cases, be accorded, by means of administrative agree- 
ments, the same treatment as the organizations listed in para- 
graph 2 or 3 of the Section in the Protocol of Signature referring 
to this Article, if they 

(a) are necessary to meet the military requirements of a 
force and 

(b) operate under the general direction and supervision of 
the force. 

5. (a) Subject to the provisions of paragraph 6 of this Article, 
employees exclusively serving organizations listed in paragraph 
2 or 3 of the Section in the Protocol of Signature referring to this 
Article shall be considered to be, and treated as, members of a 
civilian component. 

fe $ * $ * # * 

(b) Sub-paragraph (a) of this paragraph shall also apply 
to employees of organizations which, in accordance with para- 
graph 4 of this Article, are accorded the same treatment as the 
organizations listed in paragraph 2 or 3 of the Section in the 
Protocol of Signature referring to this Article. 



307 

6. The provisions of paragraph 5 of this Article shall not 
apply to 

(a) stateless persons ; 

(b) nationals of any State which is not a Party to the North 
Atlantic Treaty ; 

(c) Germans ; 

(d) persons ordinarily resident in the Federal territory. 
# ***** * 

Article 73 

Technical experts whose services are required by a force and 
who in the Federal territory exclusively serve that force either 
in an advisory capacity in technical matters or for the setting up, 
operation or maintenance of equipment shall be considered to be, 
and treated as, members of the civilian component. This provi- 
sion, however, shall not apply to 

(a) stateless persons ; 

(b) nationals of any State which is not a Party to the North 
Atlantic Treaty ; 

(c) Germans ; 

(d) persons ordinarily resident in the Federal territory. 

5jC S|» 5j£ 5J» 5JC 9)C 3|» 

Article 75 

1. (a) Except in a case where the accused is a German, neither 
Article 19 of the present Agreement nor paragraphs 1, 2 and 3 of 
Article VII of the NATO Status of Forces Agreement shall apply 
to an offence alleged to have been committed by a member of the 
forces prior to the entry into force of the present Agreement 
where before that date 

(i) proceedings in respect of such offence have been 
initiated or terminated by an authority of a force exercising 
judicial powers, or 

(ii) the prosecution of the offence became barred, under 
the law of the sending State concerned, by the expiry of a pre- 
scribed period of time. 

(b) Where proceedings are pending at the date of entry into 
force of the present Agreement, the provisions of the Forces Con- 
vention concerning the exercise of jurisdiction over offences com- 
mitted by such members shall continue to have effect for those 
proceedings, as if that Convention were still in force, until the 
conclusion of the proceedings, provided notification of the cases 



308 

so pending shall be made to the German authorities within a 
period of ten days after that date. 

2. In imposing a penalty in respect of an offence committed 
prior to the entry into force of the present Agreement, the Ger- 
man court or authority shall give due consideration to the penalty 
prescribed by the law of the sending State to which the accused 
was subject at the time of the commission of the offence, if it ap- 
pears that such penalty is lighter than that prescribed by Ger- 
man law. 

Article 76 

Defensive works, the execution of which has been agreed with 
the Federal Republic prior to the entry into force of the present 
Agreement or on which work has commenced prior to that date, 
shall be completed as planned. 

Article 80 

The provisions of Article XV of the NATO Status of Forces 
Agreement shall apply to the present Agreement, it being under- 
stood that references in that Article to other provisions of the 
NATO Status of Forces Agreement shall be deemed to be 
references to those provisions as supplemented by the present 
Agreement. 

Article 81 

1. Subject to the provisions of paragraph 2 of this Article, the 
present Agreement shall remain in force while forces are sta- 
tioned in the Federal Republic in accordance with the terms of 
the Convention on the Presence of Foreign Forces in the Federal 
Republic of Germany of 23 October 1954 or any arrangement 
which may replace it. 

2. The present Agreement shall lapse 

(a) if the Federal Republic denounces the NATO Status 
of Forces Agreement, when its denunciation takes effect pursuant 
to Article XIX of that Agreement ; 

(b) between the Federal Republic and any sending State 
that denounces the NATO Status of Forces Agreement when such 
denunciation takes effect. 



APPENDIX VIII 

GERMANY. PROTOCOL OF SIGNATURE 
TO SUPPLEMENTARY AGREEMENT 

Protocol of Signature to the Supplementary Agreement, August 
3, 1959. TIAS 5351. 

PART I 

Agreed Minutes and Declarations concerning the 
NATO Status of Forces Agreement 

Re Article I, paragraph 1, sub-paragraph (a) 

1. In view of the definition of a "force," the Federal Republic 
regards the NATO Status of Forces Agreement and the Supple- 
mentary Agreement as being applicable also to such forces of a 
sending State as are temporarily in the Federal territory in ac- 
cordance with paragraph 3 of Article 1 of the Convention on the 
Presence of Foreign Forces in the Federal Republic of Germany 
of 23 October 1954. 

2. Service attaches of a sending State in the Federal Republic, 
the members of their staffs and any other service personnel en- 
joying diplomatic or other special status in the Federal Republic 
shall not be regarded as constituting or included in a "force" for 
the purpose of the NATO Status of Forces Agreement and the 
Supplementary Agreement. 

3. Except in cases of military exigency, the Governments of the 
sending States will make every effort not to station in the terri- 
tory of the Federal Republic as members of a force persons who 
are solely Germans. 

4. (a) The following non-appropriated fund organizations and 
activities are integral parts of the United States force : 

(i) European Exchange System (EES) 

(ii) Air Forces Europe Exchange (AFEX) 

(iii) USAREUR Class VI Agency 

(iv) USAFE Class VI Agency 

(v) European Motion Picture Service 



310 

(vi) USAFE Motion Picture Service 

(vii) USAREUR Special Services Fund 

(viii) USAREUR Special Service Reimbursable Fund 

(ix) American Forces Network 

(x) Dependent Education Group (including Dependent 
Schools) 

(xi) Armed Forces Recreation Center Fund 

(xii) Association of American Rod and Gun Clubs in 
Europe 

(xiii) Stars and Stripes 

(xiv) Other non-appropriated fund organizations, includ- 
ing authorized clubs and messes 

5. Members of the Armed Forces of a sending State stationed 
in Berlin, of their civilian components and dependents shall be 
considered to be, and treated as, members of the force, of the 
civilian component or dependents while on leave in the Federal 

territory. 

******* 

Re Article VII 

1. The Federal Republic regards offences dealt with under ad- 
ministrative penal procedure (Verwaltungsstrafverfahren) and 
offences subject to a fine only (ordnungswidrigkeiten) as offences 
punishable by the law of the receiving State within the meaning 
of Article VII and the provisions of the Supplementary Agree- 
ment directly relating thereto. 

2. (a) In view of sub-paragraph (b) of paragraph 1 of Article 
VII, the Federal Republic does not consider it to be within its 
competence to decide on requests for extradition of members of 
a force, of a civilian component or dependents. 

(b) The sending States will not act upon requests for ex- 
tradition of Germans who are present in the Federal territory as 

members of a force or as dependents. 

******* 

PART II 

Agreed Minutes and Declarations concerning 

Supplementary Agreement 

******* 

Re Article 2 

The authorities of the forces shall limit as far as possible the 
number of close relatives, within the meaning of sub-paragraph 



311 

(a) of paragraph 2 of Article 2, to be admitted to the Federal 

territory. 

******* 

Re Article 19 

1. The request for a waiver of the primary right of the Federal 
Republic to exercise criminal jurisdiction provided for in para- 
graph 1 of Article 19 shall be made at the time of the entry into 
force of the Supplementary Agreement by those of the sending 
States which have decided to make use of the waiver. The 
Federal Republic shall grant the waiver to these sending States 
when the Supplementary Agreement enters into force. If a send- 
ing State decides, after the entry into force of the Supplementary 
Agreement, to make use of the waiver, the State concerned shall 
not request such waiver until agreement has been reached with 
the Federal Government on the necessary transitional arrange- 
ments. 

2. (a) Subject to a careful examination of each specific case 
and to the results of such examination, major interests of Ger- 
man administration of justice within the meaning of paragraph 
3 of Article 19 may make imperative the exercise of German 
jurisdiction, in particular in the following cases : 

(i) offences within the competence of the Federal High 
Court of Justice (Bundesgerichtshof ) in first and last instance or 
offences which may be prosecuted by the Chief Federal Prosecutor 
(Generalbundesanwalt) at the Federal High Court of Justice; 

(ii) offences causing the death of a human being, robbery, 
rape, except where these offences are directed against a member 
of a force or of a civilian component or a dependent ; 

(iii) attempt to commit such offences or participation 
therein. 

(b) In respect of the offences referred to in sub-paragraph 
(a) of this paragraph the authorities concerned shall proceed in 
particularly close cooperation from the beginning of the pre- 
liminary investigations in order to provide the mutual assistance 
envisaged in paragraph 6 of Article VII of the NATO Status 
of Forces Agreement. 
Re Article 22 

The sending States shall retain the right to keep in custody the 
arrested person either in a detention institution of their own or 
with their force. In order to ensure smooth implementation of 
the obligations imposed by the second sentence of paragraph 3 



312 

of Article 22, the authorities of the sending States shall keep the 
arrested person, where possible, in the vicinity of the seat of the 
German authority dealing with the case; this, however, shall not 
constitute an obligation on their part to keep the arrested person 
outside the area of the force. 
Re Article 26, paragraph 1, subparagraph (b) 

The term "military exigency" may also apply to cases in which 
the offence was committed by a person temporarily present in the 
Federal territory for the purpose of training exercises or 
manoeuvres. 

Re Article 71 

1. Unless otherwise agreed with the German authorities, the 

total number of civilian employees within the meaning of Article 

56 of the Supplementary Agreement, who, on the entry into force 

of that Agreement, are permanently employed in sales agencies 

and clubs serving a force, may not be increased by more than 

25 percent. 

$ $ $ $ $ $ $ 

3. Non-German non-commercial organizations within the mean- 
ing of paragraph 2 of Article 71 : 
(a) American organizations : 
(i) American Red Cross 
Purpose : 

Welfare and other assistance services for members of 
the force or of the civilian component and dependents, 
(ii) University of Maryland 
Purpose : 

University courses for members of the force or of the 
civilian component and dependents 






APPENDIX IX 

GERMANY. AGREEMENT ON THE 
STATUS OF PERSONS ON LEAVE 

Agreement between the Federal Republic of Germany and the 
United States on the Status of Persons on Leave, August 3, 1959. 
TIAS 5352. 

THE FEDERAL REPUBLIC OF GERMANY 

and 

THE UNITED STATES OF AMERICA 

HAVE AGREED AS FOLLOWS: 

Article 1 

With respect to members and civilian employees of the United 
States Armed Forces, who are stationed in Europe or North 
Africa and outside the Federal territory and Berlin, and de- 
pendents who accompany them, 

(a) Articles II, III, VII, VIII, X, XI, XII, XIII, XIV of the 
Agreement between the Parties to the North Atlantic Treaty 
regarding the Status of their Forces, signed at London on 19 
June 1951 (hereinafter referred to as the "NATO Status of 
Forces Agreement") and, 

(b) Article 2; sub-paragraphs (c) and (d) of paragraph 1 
and sub-paragraphs (a) and (c) of paragraph 2 of Article 5; 
Articles 6, 8, 15, 16, 17, 19, 22 through 25; paragraph 2 of 
Article 26; paragraph 2 of Article 36; Articles 39, 41, 59, 64, 
66, 68, 69, 74 and 75 of the Agreement to supplement the 
NATO Status of Forces Agreement with respect to Foreign 
Forces stationed in the Federal Republic of Germany, signed 
at Bonn on 3rd August 1959 (hereinafter referred to as the 
"Supplementary Agreement") 

shall apply when such persons are temporarily in the Federal terri- 
tory on leave, provided they are in possession of documentation 
identifying their duty station (hereinafter referred to as "per- 
sons on leave") . 



314 

Article 2 

1. Where a person on leave commits an offense against German 
interests, and provided that the United States military authori- 
ties are competent to exercise criminal jurisdiction, they will 
hold or return the accused for trial before a United States mili- 
tary court in the Federal territory except with respect to offenses 
of minor importance punishable through the exercise of dis- 
ciplinary jurisdiction, or except in cases of military exigency. 

2. In a case of military exigency the provisions of sub- 
paragraph (b) of paragraph 1 of Article 26 of the Supplementary 
Agreement shall apply mutatis mutandis. 

3. The United States military authorities shall notify the Ger- 
man authorities of the disposition of all cases referred to in this 
Article. 



APPENDIX X 

GREENLAND. AGREEMENT WITH 
DENMARK ON DEFENSE OF GREENLAND 

Agreement between Denmark and the United States concerning 
the Defense of Greenland. April 27, 1951. 2 UST 1485, TIAS 
2292, 94 UNTS 37. 

9|C 5J€ SJC *f* *J* *j» 9 

Article I] 

In order that the Government of the United States of America 
as a party to the North Atlantic Treaty may assist the Govern- 
ment of the Kingdom of Denmark by establishing and/or oper- 
ating such defense areas as the two Governments, on the basis of 
NATO defense plans, may from time to time agree to be neces- 
sary for the development of the defense of Greenland and the 
rest of the North Atlantic Treaty area, and which the Govern- 
ment of the Kingdom of Denmark is unable to establish and 
operate singlehanded, the two Governments in respect of the de- 
fense areas thus selected, agree to the following : 

(1) The national flags of both countries shall fly over the de- 
fense areas. 

(2) Division of responsibility for the operation and mainte- 
nance of the defense areas shall be determined from time to time 
by agreement between the two Governments in each case. 

(3) In cases where it is agreed that responsibility for the 
operation and maintenance of any defense area shall fall to the 
Government of the United States of America, the following pro- 
visions shall apply : 

(a) The Danish Commander-in-Chief of Greenland may at- 
tach Danish military personnel to the staff of the commanding 
officer of such defense area, under the command of an officer 
with whom the United States commanding officer shall consult on 
all important local matters affecting Danish interests. 

(b) Without prejudice to the sovereignty of the Kingdom of 
Denmark over such defense area and the natural right of the 



316 

competent Danish authorities to free movement everywhere in 
Greenland, the Government of the United States of America, 
without compensation to the Government of the Kingdom of Den- 
mark, shall be entitled within such defense area and the air 
spaces and waters adjacent thereto : 

(i) to improve and generally to fit the area for mili- 
tary use ; 

(ii) to construct, install, maintain, and operate facilities 
and equipment, including meteorological and communications 
facilities and equipment, and to store supplies ; 

(iii) to station and house personnel and to provide for 
their health, recreation and welfare ; 

(iv) to provide for the protection and internal security 
of the area ; 

(v) to establish and maintain postal facilities and com- 
missary stores ; 

(vi) to control landings, take-offs, anchorages, moorings, 
movements, and operation of ships, aircraft, and waterborne craft 
and vehicles, with due respect for the responsibilities of the 
Government of the Kingdom of Denmark in regard to shipping 
and aviation ; 

(vii) to improve and deepen harbors, channels, entrances, 
and anchorages. 

(c) The Government of the Kingdom of Denmark reserves 
the right to use such defense area in cooperation with the Govern- 
ment of the United States of America for the defense of Green- 
land and the rest of the North Atlantic Treaty area, and to 
construct such facilities and undertake such activities therein 
as will not impede the activities of the Government of the United 
States of America in such area. 

(4) In cases where it is agreed that responsibility for the 
operation and maintenance of any defense area shall fall to the 
Government of the Kingdom of Denmark, the following provi- 
sions shall apply : 

(a) The Government of the United States of America may 
attach United States military personnel to the staff of the com- 
manding officer of such defense area, under the command of an 
officer with whom the Danish commanding officer shall consult 
on all important local matters affecting United States interests 
pursuant to the North Atlantic Treaty. 

(b) The Government of the United States of America, with- 



317 

out compensation to the Government of the Kingdom of Denmark, 
may use such defense area in cooperation with the Government of 
the Kingdom of Denmark for the defense of Greenland and the 
rest of the North Atlantic Treaty area, and may construct such 
facilities and undertake such activities therein as will not impede 
the activities of the Government of the Kingdom of Denmark in 

such area. 

******* 

Article VI 

The Government of the United States of America agrees to 
cooperate to the fullest degree with the Government of the King- 
dom of Denmark and its authorities in Greenland in carrying 
out operations under this Agreement. Due respect will be given 
by the Government of the United States of America and by 
United States nationals in Greenland to all the laws, regulations 
and customs pertaining to the local population and the internal 
administration of Greenland, and every effort will be made to 
avoid any contact between United States personnel and the local 
population which the Danish authorities do not consider desirable 

for the conduct of operations under this Agreement. 

******* 

Article VIII 

The Government of the United States of America shall have the 
right to exercise exclusive jurisdiction over those defense areas 
in Greenland for which it is responsible under Article II (3), and 
over any offenses which may be committed in Greenland by the 
aforesaid military or civilian personnel or by members of their 
families, as well as over other persons within such defense areas 
except Danish nationals, it being understood, however, that the 
Government of the United States of America may turn over to 
the Danish authorities in Greenland for trial any person com- 
mitting an offense within such defense areas. 

•I* 'Th *P *P 5p ¥ *f* 

Article X 

Upon the coming into force of a NATO agreement to which the 
two Governments are parties pertaining to the subjects involved 
in Articles VII, VIII and IX of this Agreement, the provisions 
of the said articles will be superseded by the terms of such 
agreement to the extent that they are incompatible therewith. 



318 

If it should appear that any of the provisions of such NATO 
agreement may be inappropriate to the conditions in Greenland, 
the two Governments will consult with a view to making mutually 
acceptable adjustments. 



APPENDIX XI 

JAPAN. AGREEMENT UNDER ARTICLE VI 
OF THE TREATY OF MUTUAL COOPERATION 

AND SECURITY. 1 

Agreement under Article VI of the Treaty of Mutual Coopera- 
tion and Security between the United States of America and 
Japan, regarding facilities and areas and the status of United 
States armed forces in Japan. January 19, 1960. 11 UST 1652, 
TIAS 4510. 

Article I 

In this Agreement the expression — 

(a) "members of the United States armed forces" means 
the personnel on active duty belonging to the land, sea, or air 
armed services of the United States of America when in the 
territory of Japan. 

(b) "civilian component" means the civilian persons of 
United States nationality who are in the employ of, serving with, 
or accompanying the United States armed forces in Japan, but 
excludes persons who are ordinarily resident in Japan or who are 
mentioned in paragraph 1 of Article XIV. For the purposes of 
this Agreement only, dual nationals, United States and Japanese, 
who are brought to Japan by the United States shall be con- 
sidered as United States nationals. 

(c) "dependents" means 

(1) Spouse, and children under 21 ; 

(2) Parents, and children over 21, if dependent for over 

half their support upon a member of the United States armed 

forces or civilian component. 

******* 

Article XVI 

It is the duty of members of the United States armed forces, 
the civilian component, and their dependents to respect the law of 



1 11 UST 1632, TIAS 4509. 



320 

Japan and to abstain from any activity inconsistent with the 
spirit of this Agreement, and, in particular, from any political 
activity in Japan. 

Article XVII 

1. Subject to the provisions of this Article, 

(a) the military authorities of the United States shall have 
the right to exercise within Japan all criminal and disciplinary 
jurisdiction conferred on them by the law of the United States 
over all persons subject to the military law of the United States; 

(b) the authorities of Japan shall have jurisdiction over the 
members of the United States armed forces, the civilian com- 
ponent, and their dependents with respect to offenses committed 
within the territory of Japan and punishable by the law of Japan. 

2. (a) The military authorities of the United States shall have 
the right to exercise exclusive jurisdiction over persons subject 
to the military law of the United States with respect to offenses, 
including offenses relating to its security, punishable by the law 
of the United States, but not by the law of Japan. 

(b) The authorities of Japan shall have the right to exercise 
exclusive jurisdiction over members of the United States armed 
forces, the civilian component, and their dependents with respect 
to offenses, including offenses relating to the security of Japan, 
punishable by its laws but not by the law of the United States. 

(c) For the purposes of this paragraph and of paragraph 3 
of this Article a security offense against a State shall include 

(i) treason against the State ; 

(ii) sabotage, espionage or violation of any law relating 
to official secrets of that State, or secrets relating to the national 
defense of that State. 

3. In cases where the right to exercise jurisdiction is concur- 
rent the following rules shall apply : 

(a) The military authorities of the United States shall have 
the primary right to exercise jurisdiction over members of the 
United States armed forces or the civilian component in rela- 
tion to 

(i) offenses solely against the property or security of the 
United States, or offenses solely against the person or property 
of another member of the United States armed forces or the 
civilian component or of a dependent; 



321 

(ii) offenses arising out of any act or omission done in the 
performance of official duty. 

(b) In the case of any other offense the authorities of Japan 
shall have the primary right to exercise jurisdiction. 

(c) If the State having the primary right decides not to 
exercise jurisdiction, it shall notify the authorities of the other 
State as soon as practicable. The authorities of the State having 
the primary right shall give sympathetic consideration to a re- 
quest from the authorities of the other State for a waiver of its 
right in cases where that other State considers such waiver to 
be of particular importance. 

4. The foregoing provisions of this Article shall not imply any 
right for the military authorities of the United States to exercise 
jurisdiction over persons who are nationals of or ordinarily 
resident in Japan, unless they are members of the United States 
armed forces. 

5. (a) The military authorities of the United States and the 
authorities of Japan shall assist each other in the arrest of mem- 
bers of the United States armed forces, the civilian component, 
or their dependents in the territory of Japan and in handing 
them over to the authority which is to exercise jurisdiction in 
accordance with the above provisions. 

(b) The authorities of Japan shall notify promptly the mili- 
tary authorities of the United States of the arrest of any member 
of the United States armed forces, the civilian component, or a 
dependent. 

(c) The custody of an accused member of the United States 
armed forces or the civilian component over whom Japan is to 
exercise jurisdiction shall, if he is in the hands of the United 
States, remain with the United States until he is charged by 
Japan. 

6. (a) The military authorities of the United States and the 
authorities of Japan shall assist each other in the carrying out of 
all necessary investigations into offenses, and in the collection 
and production of evidence, including the seizure and, in proper 
cases, the handing over of objects connected with an offense. The 
handing over of such objects may, however, be made subject to 
their return within the time specified by the authority delivering 
them. 

(b) The military authorities of the United States and the 



322 

authorities of Japan shall notify each other of the disposition of 
all cases in which there are concurrent rights to exercise juris- 
diction. 

7. (a) A death sentence shall not be carried out in Japan by 
the military authorities of the United States if the legislation of 
Japan does not provide for such punishment in a similar case. 

(b) The authorities of Japan shall give sympathetic con- 
sideration to a request from the military authorities of the United 
States for assistance in carrying out a sentence of imprisonment 
pronounced by the military authorities of the United States under 
the provisions of this Article within the territory of Japan. 

8. Where an accused has been tried in accordance with the 
provisions of this Article either by the military authorities of the 
United States or the authorities of Japan and has been acquitted, 
or has been convicted and is serving, or has served, his sentence 
or has been pardoned, he may not be tried again for the same 
offense within the territory of Japan by the authorities of the 
other State. However, nothing in this paragraph shall prevent 
the military authorities of the United States from trying a mem- 
ber of its armed forces for any violation of rules of discipline 
arising from an act or omission which constituted an offense for 
which he was tried by the authorities of Japan. 

9. Whenever a member of the United States armed forces, 
the civilian component or a dependent is prosecuted under the 
jurisdiction of Japan he shall be entitled : 

(a) to a prompt and speedy trial ; 

(b) to be informed, in advance of trial, of the specific 
charge or charges made against him ; 

(c) to be confronted with the witnesses against him ; 

(d) to have compulsory process for obtaining witnesses in 
his favor, if they are within the jurisdiction of Japan ; 

(e) to have legal representation of his own choice for his 
defense or to have free or assisted legal representation under 
the conditions prevailing for the time being in Japan ; 

(f ) if he considers it necessary, to have the services of a 
competent interpreter ; and 

(g) to communicate with a representative of the Govern- 
ment of the United States and to have such a representative 
present at his trial. 

10. (a) Regularly constituted military units or formations of 
the United States armed forces shall have the right to police any 



323 

facilities or areas which they use under Article II of this Agree- 
ment. The military police of such forces may take all appropriate 
measures to ensure the maintenance of order and security within 
such facilities and areas. 

(b) Outside these facilities and areas, such military police 
shall be employed only subject to arrangements with the authori- 
ties of Japan and in liaison with those authorities, and in so far 
as such employment is necessary to maintain discipline and order 
among the members of the United States armed forces. 

11. In the event of hostilities to which the provisions of Article 
V of the Treaty of Mutual Cooperation and Security apply, either 
the Government of the United States or the Government of Japan 
shall have the right, by giving sixty days' notice to the other, to 
suspend the application of any of the provisions of this Article. 
If this right is exercised, the Governments of the United States 
and Japan shall immediately consult with a view to agreeing on 
suitable provisions to replace the provisions suspended. 

AGREED MINUTES TO THE AGREEMENT UNDER ARTI- 
CLE VI OF THE TREATY OF MUTUAL COOPERATION 
AND SECURITY BETWEEN THE UNITED STATES OF 
AMERICA AND JAPAN, REGARDING FACILITIES AND 
AREAS AND THE STATUS OF UNITED STATES ARMED 
FORCES IN JAPAN. January 19, 1960. 11 UST 1749, TIAS 
4510. 

Article XVII 
Re paragraph 1 (a) and paragraph 2 (a) : 

The scope of persons subject to the military laws of the United 
States shall be communicated, through the Joint Committee, to 
the Government of Japan by the Government of the United 
States. 

Re paragraph 2(c): 

Both Governments shall inform each other of the details of all 
the security offenses mentioned in this subparagraph and the 
provisions governing such offenses in the existing laws of their 
respective countries. 

Re paragraph 3(a) (ii) : 

Where a member of the United States armed forces or the 
civilian component is charged with an offense, a certificate issued 
by or on behalf of his commanding officer stating that the alleged 



324 

offense, if committed by him, arose out of an act or omission done 
in the performance of official duty, shall, in any judicial pro- 
ceedings, be sufficient evidence of the fact unless the contrary 
is proved. 

The above statement shall not be interpreted to prejudice in 
any way Article 318 of the Japanese Code of Criminal Procedure. 

Re paragraph 3 (c) : 

1. Mutual procedures relating to waivers of the primary right 
to exercise jurisdiction shall be determined by the Joint Com- 
mittee. 

2. Trials of cases in which the Japanese authorities have 
waived the primary right to exercise jurisdiction, and trials of 
cases involving offenses described in paragraph 3(a) (ii) com- 
mitted against the State or nationals of Japan shall be held 
promptly in Japan within a reasonable distance from the places 
where the offenses are alleged to have taken place unless other 
arrangements are mutually agreed upon. Representatives of the 
Japanese authorities may be present at such trials. 

Re paragraph 4 : 

Dual nationals, United States and Japanese, who are subject 
to the military law of the United States and are brought to 
Japan by the United States shall not be considered as nationals 
of Japan, but shall be considered as United States nationals for 
the purposes of this paragraph. 

Re paragraph 5 : 

1. In case the Japanese authorities have arrested an offender 
who is a member of the United States armed forces, the civilian 
component, or a dependent subject to the military law of the 
United States with respect to a case over which Japan has the 
primary right to exercise jurisdiction, the Japanese authorities 
will, unless they deem that there is adequate cause and necessity 
to retain such offender, release him to the custody of the United 
States military authorities provided that he shall, on request, be 
made available to the Japanese authorities, if such be the condi- 
tion of his release. The United States authorities shall, on re- 
quest, transfer his custody to the Japanese authorities at the 
time he is indicted by the latter. 

2. The United States military authorities shall promptly notify 
the Japanese authorities of the arrest of any member of the 
United States armed forces, the civilian component or a de- 



325 

pendent in any case in which Japan has the primary right to 
exercise jurisdiction. 

Re paragraph 9 : 

1. The rights enumerated in items (a) through (e) of this 
paragraph are guaranteed to all persons on trial in Japanese 
courts by the provisions of the Japanese Constitution. In addition 
to these rights, a member of the United States armed forces, the 
civilian component or a dependent who is prosecuted under the 
jurisdiction of Japan shall have such other rights as are guaran- 
teed under the laws of Japan to all persons on trial in Japanese 
courts. Such additional rights include the following which are 
guaranteed under the Japanese Constitution : 

(a) He shall not be arrested or detained without being at 
once informed of the charge against him or without the im- 
mediate privilege of counsel; nor shall he be detained without 
adequate cause ; and upon demand of any person such cause must 
be immediately shown in open court in his presence and the 
presence of his counsel ; 

(b) He shall enjoy the right to a public trial by an impartial 
tribunal ; 

(c) He shall not be compelled to testify against himself ; 

(d) He shall be permitted full opportunity to examine all 
witnesses ; 

(e) No cruel punishments shall be imposed upon him. 

2. The United States authorities shall have the right upon 
request to have access at any time to members of the United 
States armed forces, the civilian component, or their dependents 
who are confined or detained under Japanese authority. 

3. Nothing in the provisions of paragraph 9 (g) concerning 
the presence of a representative of the United States Government 
at the trial of a member of the United States armed forces, the 
civilian component or a dependent prosecuted under the jurisdic- 
tion of Japan, shall be so construed as to prejudice the provisions 
of the Japanese Constitution with respect to public trials. 

Re paragraphs 10 (a) and 10 (b) : 

1. The United States military authorities will normally make 
all arrests within facilities and areas in use by and guarded under 
the authority of the United States armed forces. This shall not 
preclude the Japanese authorities from making arrests within 
facilities and areas in cases where the competent authorities of 



326 

the United States armed forces have given consent, or in cases 
of pursuit of a flagrant offender who has committed a serious 
crime. 

Where persons whose arrest is desired by the Japanese authori- 
ties and who are not subject to the jurisdiction of the United 
States armed forces are within facilities and areas in use by the 
United States armed forces, the United States military authori- 
ties will undertake, upon request, to arrest such persons. All 
persons arrested by the United States military authorities, who 
are not subject to the jurisdiction of the United States armed 
forces, shall immediately be turned over to the Japanese au- 
thorities. 

The United States military authorities may, under due process 
of law, arrest in the vicinity of a facility or area any person in 
the commission or attempted commission of an offense against the 
security of that facility or area. Any such person not subject to 
the jurisdiction of the United States armed forces shall im- 
mediately be turned over to the Japanese authorities. 

2. The Japanese authorities will normally not exercise the right 
of search, seizure, or inspection with respect to any persons or 
property within facilities and areas in use by and guarded under 
the authority of the United States armed forces or with respect 
to property of the United States armed forces wherever situated, 
except in cases where the competent authorities of the United 
States armed forces consent to such search, seizure, or inspection 
by the Japanese authorities of such persons or property. 

Where search, seizure, or inspection with respect to persons 
or property within facilities and areas in use by the United 
States armed forces or with respect to property of the United 
States armed forces in Japan is desired by the Japanese authori- 
ties, the United States military authorities will undertake, upon 
request, to make such search, seizure, or inspection. In the event 
of a judgment concerning such property, except property owned 
or utilized by the United States Government or its instrumentali- 
ties, the United States will turn over such property to the 
Japanese authorities for disposition in accordance with the 
judgment. 



APPENDIX XII 

LEASED BASES. AGREEMENT WITH GREAT 
BRITAIN ON LEASED NAVAL AND AIR BASES 

Agreement between United States and Great Britain regarding 
Leased Naval and Air Bases, March 27, 1941, EAS 235, 55 
Stat. 1560. 

Article IV 

JURISDICTION 

(1) In any case in which — 

(a) a member of the United States forces, a national of the 
United States or a person who is not a British subject shall be 
charged with having committed, either within or without the 
Leased Areas, an offence of a military nature, punishable under 
the law of the United States, including, but not restricted to, 
treason, an offence relating to sabotage or espionage, or any other 
offence relating to the security and protection of United States 
naval and air Bases, establishments, equipment or other property 
or to operations of the Government of the United States in the 
Territory ; or 

(b) a British subject shall be charged with having com- 
mitted any such offence within a Leased Area and shall be ap- 
prehended therein ; or 

(c) a person other than a British subject shall be charged 
with having committed an offence of any other nature within a 
Leased Area, the United States shall have the absolute right in 
the first instance to assume and exercise jurisdiction with respect 
to such offence. 

(2) If the United States shall elect not to assume and exercise 
such jurisdiction the United States Authorities shall, where such 
offence is punishable in virtue of legislation enacted pursuant to 
Article V or otherwise under the law of the Territory, so inform 
the Government of the Territory and shall, if it shall be agreed 
between the Government of the Territory and the United States 
Authorities that the alleged offender should be brought to trial, 



328 

surrender him to the appropriate authority in the Territory for 
that purpose. 

(3) If a British subject shall be charged with having com- 
mitted within a Leased Area an offence of the nature described in 
paragraph (1) (a) of this Article, and shall not be apprehended 
therein, he shall, if in the Territory outside the Leased Areas, 
be brought to trial before the courts of the Territory; or, if the 
offence is not punishable under the law of the Territory, he shall, 
on the request of the United States Authorities, be apprehended 
and surrendered to the United States Authorities, and the United 
States shall have the right to exercise jurisdiction with respect to 
the alleged offence. 

(4) When the United States exercises jurisdiction under this 
Article and the person charged is a British subject, he shall be 
tried by a United States court sitting in a Leased Area in the 
Territory. 

(5) Nothing in this Agreement shall be construed to affect, 
prejudice or restrict the full exercise at all times of jurisdiction 
and control by the United States in matters of discipline and in- 
ternal administration over members of the United States forces, 
as conferred by the law of the United States and any regulations 
made thereunder. 

Article V 
SECURITY LEGISLATION 

The Government of the Territory will take such steps as may 
from time to time be agreed to be necessary with a view to the 
enactment of legislation to ensure the adequate security and pro- 
tection of the United States naval and air Bases, establishments, 
equipment and other property, and the operations of the United 
States under the Leases and this Agreement and the punishment 
of persons who may contravene any laws or regulations made for 
that purpose. The Government of the Territory will also from 
time to time consult with the United States Authorities in order 
that the laws and regulations of the United States and the Terri- 
tory in relation to such matters may, so far as circumstances 
permit, be similar in character. 

Article VI 

ARREST AND SERVICE OF PROCESS 

(1) No arrest shall be made and no process, civil or criminal, 



329 

shall be served within any Leased Area except with the permis- 
sion of the Commanding Officer in charge of the United States 
forces in such Leased Area; but should the Commanding Officer 
refuse to grant such permission he shall (except in cases where 
the United States Authorities elect to assume and exercise juris- 
diction in accordance with Article IV (1)) forthwith take the 
necessary steps to arrest the person charged and surrender him 
to the appropriate authority of the Territory or to serve such 
process, as the case may be, and to provide for the attendance of 
the server of such process before the appropriate court of the 
Territory or procure such server to make the necessary affidavit 
or declaration to prove such service. 

(2) In cases where the courts of the United States have juris- 
diction under Article IV, the Government of the Territory will on 
request give reciprocal facilities as regards the service of process 
and the arrest and surrender of alleged offenders. 

(3) In this Article the expression "process" includes any 
process by way of summons, subpoena, writ or other judicial 
document for securing the attendance of a witness, for the 
production of any documents or exhibits, required in any proceed- 
ings civil or criminal. 

Article VII 

RIGHT OF AUDIENCE FOR UNITED STATES CONSUL 

In cases in which a member of the United States forces shall 
be a party to civil or criminal proceedings in any court of the 
Territory by reason of some alleged act or omission arising out 
of or in the course of his official duty, United States counsel (au- 
thorised to practise before the courts of the United States) shall 
have the right of audience, provided that such counsel is in the 
service of the Government of the United States and appointed 
for that purpose either generally or specially by the appropriate 
authority. 

Article VIII 

SURRENDER OF OFFENDERS 

Where a person charged with an offence which fails to be dealt 
with by the courts of the Territory is in a Leased Area, or a per- 
son charged with an offence which falls under Article IV to be 
dealt with by courts of the United States is in the Territory but 
outside the Leased Areas, such person shall be surrendered to 



330 

the Government of the Territory or to the United States Authori- 
ties, as the case may be, in accordance with special arrangements 
made between that Government and those Authorities. 

Article XXX 

INTERPRETATION 

In this Agreement, unless the context otherwise requires, the 
following expressions have the meanings hereby respectively as- 
signed to them : 

"The United States Authorities" means the authority or au- 
thorities from time to time authorised or designated, by the 
Government of the United States of America, for the purpose 
of exercising the powers in relation to which the expression 
is used. 

"United States forces" means the naval and military forces 
of the United States of America. 

"British subject" includes British protected person. 



APPENDIX XIII 

REVISED LEASED BASES. AGREEMENT 

WITH GREAT BRITAIN REVISING LEASED 

BASES AGREEMENT 

Agreement between the United Kingdom and the United States 
modifying Articles IV and VI of the Leased Bases Agreement of 
March 27, 1941. July 19 and August 1, 1950. 1 UST 585, TIAS 
2105, 88 UNTS 273. 

Article IV 

JURISDICTION 

(1) The Government of the United States of America shall 
have the right to exercise the following jurisdiction over offences 
committed in the Territory : 

(a) Where the accused is a member of a United States force, 
(i) if a state of war exists, exclusive jurisdiction over all 

offences wherever committed ; 

(ii) if a state of war does not exist, exclusive jurisdiction 
over security offences wherever committed and United States in- 
terest offences committed inside the Leased Areas; concurrent 
jurisdiction over all other offences wherever committed. 

(b) Where the accused is a British subject or a local alien 
and a civil court of the United States is sitting in the Territory, 
exclusive jurisdiction over security offences committed inside the 
Leased Areas. 

(c) Where the accused is not a member of a United States 
force, a British subject or a local alien, but is a person subject to 
United States military or naval law, 

(i) if a state of war exists, exclusive jurisdiction over 
security offences committed inside the Leased Areas ; and United 
States interest offences committed inside the Leased Areas; con- 
current jurisdiction over all other offences wherever committed; 

(ii) if a state of war does not exist and there is no civil 
court of the United States sitting in the Territory, exclusive 



332 

jurisdiction over security offences which are not punishable under 
the law of the Territory; concurrent jurisdiction over all other 
offences committed inside the Leased Areas. 

(iii) if a state of war does not exist and a civil court of 
the United States is sitting in the Territory, exclusive jurisdic- 
tion over security offences committed inside the Leased Areas; 
concurrent jurisdiction over all other offences wherever com- 
mitted. 

(d) Where the accused is not a member of a United States 
force, a British subject or a local alien, and is not a person sub- 
ject to United States military or naval law, and a civil court of 
the United States is sitting in the Territory, exclusive jurisdic- 
tion over security offences committed inside the Leased Areas; 
concurrent jurisdiction over all other offences committed inside 
the Leased Areas and, if a state of war exists, over security 
offences committed outside the Leased Areas. 

(2) Wherever, under paragraph (1) of this Article, the 
Government of the United States of America has the right to 
exercise exclusive jurisdiction over security offences committed 
inside the Leased Areas, such right shall extend to security 
offences committed outside the Leased Areas which are not 
punishable under the law of the Territory. 

(3) In every case in which under this Article the Government 
of the United States of America has the right to exercise jurisdic- 
tion and the accused is a British subject, a local alien or, being 
neither a British subject not a local alien, is not a person subject 
to United States military or naval law, such jurisdiction shall be 
exercisable only by a civil court of the United States sitting in 
the Territory. 

(4) In every case in which under this Article the Government 
of the United States of America has the right to exercise exclu- 
sive jurisdiction, the following provisions shall have effect: 

(a) The United States authorities shall inform the Govern- 
ment of the Territory as soon as is practicable whether or not 
they elect to exercise such jurisdiction over any alleged offences 
which may be brought to their attention by the competent au- 
thorities of the Territory or in any other case in which the 
United States authorities are requested by the competent authori- 
ties of the Territory to furnish such information. 

(b) If the United States authorities elect to exercise such 
jurisdiction, the accused shall be brought to trial accordingly, and 



333 

the courts of the Territory shall not exercise jurisdiction except 
in aid of a court or authority of the United States, as required or 
permitted by the law of the Territory. 

(c) If the United States authorities elect not to exercise such 
jurisdiction, and if it shall be agreed between the Government of 
the Territory and the United States authorities that the alleged 
offender shall be brought to trial, nothing in this Article shall 
affect the exercise of jurisdiction by the courts of the Territory in 
the case. 

(5) In every case in which under this Article the Govern- 
ment of the United States of America has the right to exercise 
concurrent jurisdiction, the following provisions shall have effect: 

(a) The case shall be tried by such court as may be ar- 
ranged between the Government of the Territory and the United 
States authorities. 

(b) Where an offence is within the jurisdiction of a civil 
court of the Territory and of a United States military or naval 
court, conviction or acquittal of the accused by one such court 
shall not exclude subsequent trial by the other, but in the event 
of such subsequent trial the court in awarding punishment shall 
have regard to any punishment awarded in the previous pro- 
ceedings. 

(c) Where the offence is within the jurisdiction of a civil 
court of the Territory and of a civil court of the United States, 
trial by one shall exclude trial by the other. 

(6) Notwithstanding anything contained elsewhere in this 
Article, when a state of war exists in which the Government of 
the United Kingdom is, and the Government of the United States 
of America is not, engaged, then in any case in which the Govern- 
ment of the United States of America would, but for this para- 
graph, have exclusive jurisdiction, that jurisdiction shall be 
concurrent in respect of any of the following offences against any 
part of His Majesty's dominions committed outside the Leased 
Areas or, if not punishable by the Government of the United 
States of America in the Territory, inside the Leased Areas: 

(a) treason ; 

(b) any offence of the nature of sabotage or espionage or 
against any law relating to official secrets ; 

(c) any other offence relating to operations, in the Terri- 
tory, of the Government of any part of His Majesty's dominions, 
or to the safety of His Majesty's naval, military or air bases or 



334 

establishments or any part thereof or of any equipment or other 
property of any such Government in the Territory. 

(7) Nothing in this Article shall give the Government of the 
United States of America the right to exercise jurisdiction over 
a member of a United Kingdom Dominion or Colonial armed 
force, except that, if a civil court of the United States is sitting 
in the Territory and a state of war does not exist or a state of 
war exists in which the Government of the United States of 
America is, and the Government of the United Kingdom is not, 
engaged, the Government of the United States of America shall 
have the right, where the accused is a member of any such force, 
to exercise concurrent jurisdiction over security offences com- 
mitted inside the Leased Areas. 

(8) Nothing in this Article shall affect the jurisdiction of a 
civil court of the Territory except as expressly provided in this 
Article. 

(9) In this Article the following expressions shall have the 
meanings hereby assigned to them : 

(a) "British subject" shall not include a person who is both 
a British subject and a member of a United States force. 

(b) "local alien' , means a person, not being a British sub- 
ject, a member of a United States force or a national of the 
United States who is ordinarily resident in the Territory. 

(c) "member of a United States force" means a member 
(entitled to wear the uniform) of the naval, military or air 
forces of the United States of America. 

(d) "security offence" means any of the following offences 
against the United States and punishable under the law thereof: 

(i) treason; 

(ii) any offence of the nature of sabotage or espionage or 
against any law relating to official secrets ; 

(iii) any other offence relating to operations, in the Terri- 
tory, of the Government of the United States of America, or to 
the safety of the United States Naval or Air Bases or establish- 
ments or any part thereof or of any equipment or other property 
of the Government of the United States of America in the 
Territory. 

(e) "state of war" means a state of actual hostilities in 
which either the Government of the United Kingdom or the 
Government of the United States of America is engaged and 
which has not been formally terminated, as by surrender. 



335 

(f ) "United States interest offence" means an offence which 
(excluding the general interest of the Government of the Terri- 
tory in the maintenance of law and order therein) is solely 
against the interests of the Government of the United States of 
America or against any person (not being a British subject or 
local alien) or property (not being property of a British subject 
or local alien) present in the Territory by reason only of service 
or employment in connection with the construction, maintenance, 
operation or defence of the Bases. 

Note 

It was also agreed: "That Article VI of the Agreement of 
March 27th, 1941 shall have effect as if the words ' (except where, 
under Article IV, jurisdiction is to be exercised by the United 
States or is not exercisable by the courts of the Territory) ' were 
substituted for the words '(except in cases where the United 
States authorities elect to assume and exercise jurisdiction in 
accordance with Article IV (1) )'." 



APPENDIX XIV 

CANADA. AGREEMENT RELATING TO 

APPLICATION OF NATO AGREEMENT 

TO LEASED BASES IN CANADA 

Agreement between the United States and Canada relating to 
the application of the NATO Agreement to United States Forces 
at the Leased Bases in Canada. April 28 and 30, 1952. 5 UST 
2139, TIAS 3074, 235 UNTS 270. 

Subject to the concurrence of the Canadian Government in the 
foregoing, the United States Government agrees that the NATO 
Status of Forces Agreement should be made applicable to all 
United States forces in Canada, including those at the leased 
bases and at Goose Bay, it being understood that those provisions 
of the Leased Bases Agreement which deal with the matters 
covered in the NATO Status of Forces Agreement will be held in 
abeyance until the NATO Status of Forces Agreement is termi- 
nated through expiration or denunciation. It is understood that 
the provisions of the Leased Bases Agreement dealing with mat- 
ters not covered in the NATO Status of Forces Agreement will 
be unaffected. 

Both the United States Government and the Canadian Govern- 
ment agree that uniform treatment of United States forces 
throughout Canada under the NATO Status of Forces Agree- 
ment would be in the interests of both countries and would make 
for simplification of administration. 



APPENDIX XV 

BAHAMA ISLANDS. AGREEMENT WITH 

GREAT BRITAIN RELATING TO LONG 

RANGE PROVING GROUND 

Agreement between the United Kingdom and the United 
States for Establishment in the Bahama Islands of a Long-Range 
Proving Ground for Guided Missiles. July 21, 1950. 1 UST 545, 
TIAS 2099, 97 UNTS 194. 

Article I 
DEFINITIONS 
For the purposes of this Agreement : 

(1) "Range Area" means that part of the Flight Testing 
Range which lies within the territory of the Bahama Islands (in- 
cluding the territorial waters thereof) . 

(2) "United States authorities" means the authority or au- 
thorities from time to time authorised or designated, by the 
Government of the United States of America, for the purpose of 
exercising the powers in relation to which the expression is used. 

(3) "United States Forces" means the armed forces of the 
United States of America, and "member of the United States 
Forces" means a member of those forces who is entitled to wear 
the uniform thereof. 

(4) "Flight Testing Range" means the area within the red 
and hatched line drawn on the attached map. (Not included 
herein) . 

(5) "National of the United States" means a citizen of the 
United States or a person who, though not a citizen of the United 
States, owes allegiance to the United States. 

(6) "British national" means any British subject or Common- 
wealth citizen or any British-protected person, but shall not in- 
clude a person who is both a British national and a member of 
the United States Forces. 

(7) "Local alien" means a person, not being a British national, 
a member of the United States Forces or a national of the 



340 

United States, who is ordinarily resident in the Bahama Islands. 
(8) "Sites" means the sites provided under Article IV of this 

Agreement so long as they are so provided. 

******* 

Article V 

JURISDICTION 

(1) The Government of the United States of America shall 
have the right to exercise the following jurisdiction over offences 
committed in the Bahama Islands : 

(a) Where the accused is a member of the United States 
Forces, 

(i) if a state of war exists, exclusive jurisdiction over all 
offences wherever committed ; 

(ii) if a state of war does not exist, exclusive jurisdiction 
over security offences wherever committed and United States 
interest offences committed inside the Sites; concurrent jurisdic- 
tion over all other offences wherever committed. 

(b) Where the accused is a British national or a local alien 
and a civil court of the United States is sitting in the Bahama 
Islands, exclusive jurisdiction over security offences committed 
inside the Sites. 

(c) Where the accused is not a member of the United States 
Forces, a British national or a local alien, but is a person subject 
to United States military or naval law, 

(i) if a state of war exists, exclusive jurisdiction over 
security offences committed inside the Sites and United States 
interest offences committed inside the Sites; concurrent jurisdic- 
tion over all other offences wherever committed ; 

(ii) if a state of war does not exist and there is no civil 
court of the United States sitting in the Bahama Islands, exclu- 
sive jurisdiction over security offences which are not punishable 
under the law of the Bahama Islands; concurrent jurisdiction 
over all other offences committed inside the Sites ; 

(iii) if a state of war does not exist and a civil court of 
the United States is sitting in the Bahama Islands, exclusive 
jurisdiction over security offences committed inside the Sites; 
concurrent jurisdiction over all other offences wherever com- 
mitted. 

(d) Where the accused is not a member of the United 
States Forces, a British national or a local alien, and is not a 



341 

person subject to United States military or naval law, and a 
civil court of the United States is sitting in the Bahama Islands, 
exclusive jurisdiction over security offences committed inside the 
Sites; concurrent jurisdiction over all offences committed inside 
the Sites and, if a state of war exists, over security offences 
committed outside the Sites. 

(2) Wherever, under paragraph (1) of this Article, the 
Government of the United States of America has the right to 
exercise exclusive jurisdiction over security offences committed 
inside the Sites, such right shall extend to security offences com- 
mitted outside the Sites which are not punishable under the law 
of the Bahama Islands. 

(3) In every case in which under this Article the Government 
of the United States of America has the right to exercise 
jurisdiction and the accused is a British national, a local alien or, 
being neither a British national nor a local alien, is not a person 
subject to United States military or naval law, such jurisdiction 
shall be exercisable only by a civil court of the United States 
sitting in the Bahama Islands. 

(4) In every case in which under this Article the Government 
of the United States of America has the right to exercise exclu- 
sive jurisdiction, the following provisions shall have effect : 

(a) The United States authorities shall inform the Govern- 
ment of the Bahama Islands as soon as is practicable whether or 
not they elect to exercise such jurisdiction over any alleged 
offences which may be brought to their attention by the competent 
authorities of the Bahama Islands or in any other case in which 
the United States authorities are requested by the competent au- 
thorities of the Bahama Islands to furnish such information. 

(b) If the United States authorities elect to exercise such 
jurisdiction, the accused shall be brought to trial accordingly, and 
the courts of the Bahama Islands shall not exercise jurisdiction 
except in aid of a court or authority of the United States, as re- 
quired or permitted by the law of the Bahama Islands. 

(c) If the United States authorities elect not to exercise 
such jurisdiction, and if it shall be agreed between the Govern- 
ment of the Bahama Islands and the United States authorities 
that the alleged offender shall be brought to trial, nothing in this 
Article shall affect the exercise of jurisdiction by the courts of the 
Bahama Islands in the case. 

(5) In every case in which under this Article the Government 



342 

of the United States of America has the right to exercise con- 
current jurisdiction, the following provisions shall have effect: 

(a) The case shall be tried by such court as may be arranged 
between the Government of the Bahama Islands and the United 
States authorities. 

(b) Where an offence is within the jurisdiction of a civil 
court of the Bahama Islands and of a United States military or 
naval court, conviction or acquittal of the accused by one such 
court shall not exclude subsequent trial by the other but in the 
event of such subsequent trial the court in awarding punishment 
shall have regard to any punishment awarded in the previous 
proceedings. 

(c) Where the offence is within the jurisdiction of a civil 
court of the Bahama Islands and of a civil court of the United 
States, trial by one shall exclude trial by the other. 

(6) Notwithstanding anything contained elsewhere in this 
Article, when a state of war exists in which the Government of 
the United Kingdom is, and the Government of the United States 
of America is not, engaged, then in any case in which the Govern- 
ment of the United States of America would, but for this para- 
graph, have exclusive jurisdiction, that jurisdiction shall be con- 
current in respect of any of the following offences against any 
part of His Majesty's dominions committed outside the Sites or, 
if not punishable by the Government of the United States of 
America in the Bahama Islands, inside the Sites : 

(a) treason ; 

(b) any offence of the nature of sabotage or espionage or 
against any law relating to official secrets ; 

(c) any other offence relating to operations in the Bahama 
Islands of the Government of any part of His Majesty's dominions, 
or to the safety of His Majesty's naval, military or air bases or 
establishments of any part thereof or of any equipment or other 
property of any such Government in the Bahama Islands. 

(7) Nothing in this Article shall give the Government of the 
United States of America the right to exercise jurisdiction over a 
member of a United Kingdom, Dominion or Colonial armed force, 
except that, if a civil court of the United States is sitting in the 
Bahama Islands and a state of war does not exist or a state of 
war exists in which the Government of the United States of 
America is, and the Government of the United Kingdom is not, 
engaged, the Government of the United States of America shall 



343 

have the right, where the accused is a member of any such force, 
to exercise concurrent jurisdiction over security offences com- 
mitted inside the Sites. 

(8) Nothing in this Article shall affect the jurisdiction of a 
civil court of the Bahama Islands except as expressly provided in 
this Article. 

(9) In this Article the following expressions shall have the 
meanings hereby assigned to them : 

(a) "Security offence" means any of the following offences 
against the Government of the United States of America and 
punishable under the law of the United States of America : 

(i) treason; 

(ii) any offence of the nature of sabotage or espionage or 
against any law relating to official secrets ; 

(iii) any other offence relating to operations in the 
Bahama Islands, of the Government of the United States of 
America, or to the safety of any equipment or other property of 
the Government of the United States of America in the Bahama 
Islands. 

(b) "State of war" means a state of actual hostilities in 
which either the Government of the United Kingdom or the 
Government of the United States of America is engaged and which 
has not been formally terminated, as by surrender. 

(c) "United States interest offence" means an offence which 
(excluding the general interest of the Government of the Bahama 
Islands in the maintenance of law and order therein) is solely 
against the interests of the Government of the United States of 
America or against any person (not being a British national or 
local alien) or property (not being property of a British national 
or local alien) present in the Bahama Islands by reason only of 
service or employment in connection with the construction, 
maintenance, operation or defense of the Flight Testing Range. 

Article VI 

SECURITY LEGISLATION 

The Government of the Bahama Islands will take such steps as 
may from time to time be agreed to be necessary with a view 
to the enactment of legislation to ensure the adequate security 
and protection of the Sites and United States equipment and 
other property, and the operations of the United States under 
this Agreement and the punishment of persons who may con- 



344 

travene any laws or regulations made for that purpose. The 
Government of the Bahama Islands will also from time to time 
consult with the United States authorities in order that the laws 
and regulations of the United States of America and of the 
Bahama Islands in relation to such matters may, so far as cir« 
cumstances permit, be similar in character. 

Article VII 

ARREST AND SERVICE OF PROCESS 

(1) No arrest of a person who is a member of the United 
States Forces or who is a national of the United States subject 
to United States military law shall be made and no process, civil 
or criminal, shall be served on any such person within any Site 
except with the permission of the Commanding Officer in charge 
of the United States Forces in such Site; but should the Com- 
manding Officer refuse to grant such permission he shall (except 
where, under Article V, jurisdiction is to be exercised by the 
United States or is not exercisable by the courts of the Bahama 
Islands) forthwith take the necessary steps to arrest the person 
charged and surrender him to the appropriate authority of the 
Bahama Islands or to serve such process, as the case may be, and 
to provide for the attendance of the server of such process before 
the appropriate court of the Bahama Islands or procure such 
server to make the necessary affidavit or declaration to prove 
such service. 

(2) In cases where the courts of the United States have juris- 
diction under Article V, the Government of the Bahama Islands 
will on request give reciprocal facilities as regards the service of 
process and the arrest and surrender of persons charged. 

(3) In this Article the expression "process" includes any 
process by way of summons, subpoena, warrant, writ or other 
judicial document for securing the attendance of a witness, or 
for the production of any documents or exhibits, required in 
any proceedings, civil or criminal. 

Article VIII 

RIGHT OF AUDIENCE FOR UNITED STATES COUNSEL 

In cases in which a member of the United States forces shall 
be a party to civil or criminal proceedings in any court of the 
Bahama Islands by reason of some alleged act or omission arising 
out of or in the course of his official duty, United States counsel 



345 

(authorised to practise before the courts of the United States) 
shall have the right of audience, provided that such counsel is in 
the service of the Government of the United States of America 
and appointed for that purpose either generally or specially by 
the appropriate authority. 

Article IX 

SURRENDER OF PERSONS CHARGED 

Where a person charged with an offence which fails to be dealt 
with by the courts of the Bahama Islands is in a Site, or a person 
charged with an offence which falls under Article V to be dealt 
with by courts of the United States is in the Bahama Islands but 
outside the Sites, such person shall be surrendered to the Govern- 
ment of the Bahama Islands, or to the United States authorities, 
as the case may be, in accordance with special arrangements 
made between that Government and those authorities. 



APPENDIX XVI 

DOMINICAN REPUBLIC. AGREEMENT RELATING 
TO LONG-RANGE PROVING GROUND 

Agreement between the United States and the Dominican Re- 
public regarding Long-Range Proving Ground, November 26, 
1951. 1 3 UST 2569, TIAS 2425, 150 UNTS 227. 

)JC SfC SjC 5JC 3f5 3|» 3p 

Article XV 

(1) (a) Except as provided in subparagraph (b), the Govern- 
ment of the United States of America shall have the right to 
exercise exclusive criminal jurisdiction over any offenses com- 
mitted in the Dominican Republic by : 

(i) Members of the United States Forces ; 
(ii) Other persons subject to United States military law 
except Dominican nationals or local aliens. 

(b) Except during a period of hostilities in which either 
Government is engaged, the Government of the United States 
of America and the Government of the Dominican Republic shall 
have concurrent jurisdiction over offenses committed outside the 
sites referred to in Article II by persons described in subpara- 
graph (a) against a Dominican national or local alien. In each 
such case, the Mixed Military Commission shall decide which 
Government shall exercise jurisdiction, and shall give considera- 
tion to whether the offense arose out of any act or omission done 
in the performance of official duties. During a period of hostili- 
ties in which either government is engaged the principle stated 
in subparagraph (a) shall apply. 

(2) Whenever military authorities of the United States of 
America may exercise jurisdiction over an alleged offender, the 
authorities of the Dominican Republic will assist in the arrest and 
handing over of such alleged offenders, the collection of evi- 



1 Extended by Exchange of Notes of March 31, 1962 and July 25, 1962, 
(13 UST 2082, TIAS 5165) to September 30, 1962. Expired by its terms on 
that date. 



348 

dence and the carrying out of all necessary investigations, in- 
cluding the seizure and in proper cases the handing over of 
exhibits and all objects connected with the offense. All persons 
not subject to United States Government jurisdiction under this 
Agreement, who are charged with offenses committed on a site, 
or who are found on a site in connection with offenses committed 
elsewhere in the Dominican Republic, shall be surrendered to the 
Dominican authorities. In such cases the United States authori- 
ties will assist in the collection of evidence and the carrying out 
of all necessary investigations including the seizure and in proper 
cases the handing over of exhibits and all objects connected with 
the offense. 



APPENDIX XVII 

PHILIPPINES. AGREEMENT 
CONCERNING MILITARY BASES 

Agreement between the Philippines and the United States con- 
cerning Military Bases, March 14, 1947. 61 Stat. 4019, TIAS 

1775, 43 UNTS 272. 

******* 

Article III 

DESCRIPTION OF RIGHTS 
1. It is mutually agreed that the United States shall have the 
rights, power and authority within the bases which are necessary 
for the establishment, use, operation and defense thereof or ap- 
propriate for the control thereof and all the rights, power and 
authority within the limits of territorial waters and air space 
adjacent to, or in the vicinity of, the bases which are necessary 

to provide access to them, or appropriate for their control. 
******* 

Article XIII 

JURISDICTION 

1. The Philippines consents that the United States shall have 
the right to exercise jurisdiction over the following offenses : 

(a) Any offense committed by any person within any base 
except where the offender and offended parties are both Philip- 
pine citizens (not members of the armed forces of the United 
States on active duty) or the offense is against the security of 
the Philippines ; 

(b) Any offense committed outside the bases by any member 
of the armed forces of the United States in which the offended 
party is also a member of the armed forces of the United 
States ; and 

(c) Any offense committed outside the bases by any member 
of the armed forces of the United States against the security of 
the United States. 



350 

2. The Philippines shall have the right to exercise jurisdiction 
over all other offenses committed outside the bases by any mem- 
ber of the armed forces of the United States. 

3. Whenever for special reasons the United States may desire 
not to exercise the jurisdiction reserved to it in paragraphs 1 
and 6 of this Article, the officer holding the offender in custody 
shall so notify the fiscal (prosecuting attorney) of the city or 
province in which the offense has been committed within ten 
days after his arrest, and in such a case the Philippines shall 
exercise jurisdiction. 

4. Whenever for special reasons the Philippines may desire not 
to exercise the jurisdiction reserved to it in paragraph 2 of this 
Article, the fiscal (prosecuting attorney) of the city or province 
where the offense has been committed shall so notify the officer 
holding the offender in custody within ten days after his arrest, 
and in such a case the United States shall be free to exercise 
jurisdiction. If any offense falling under paragraph 2 of this 
Article is committed by any member of the armed forces of the 
United States 

(a) while engaged in the actual performance of a specific 
military duty, or 

(b) during a period of national emergency declared by 
either Government and the fiscal (prosecuting attorney) so finds 
from the evidence he shall immediately notify the officer holding 
the offender in custody that the United States is free to exercise 
jurisdiction. In the event the fiscal (prosecuting attorney) finds 
that the offense was not committed in the actual performance of 
a specific military duty, the offender's commanding officer shall 
have the right to appeal from such finding to the Secretary of 
Justice within ten days from the receipt of the decision of the 
fiscal and the decision of the Secretary of Justice shall be final. 

5. In all cases over which the Philippines exercises jurisdiction 
the custody of the accused, pending trial and final judgment, 
shall be entrusted without delay to the commanding officer of the 
nearest base, who shall acknowledge in writing that such accused 
has been delivered to him for custody pending trial in a compe- 
tent court of the Philippines and that he will be held ready to 
appear and will be produced before said court when required by 
it. The commanding officer shall be furnished by the fiscal 
(prosecuting attorney) with a copy of the information against 
the accused upon the filing of the original in the competent court. 



351 

6. Notwithstanding the foregoing provisions, it is mutually 
agreed that in time of war the United States shall have the right 
to exercise exclusive jurisdiction over any offenses which may 
be committed by members of the armed forces of the United 
States in the Philippines. 

7. The United States agrees that it will not grant asylum in 
any of the bases to any person fleeing from the lawful jurisdic- 
tion of the Philippines. Should any such person be found in any 
base, he will be surrendered on demand to the competent au- 
thorities of the Philippines. 

8. In every case in which jurisdiction over an offense is exer- 
cised by the United States, the offended party may institute a 
separate civil action against the offender in the proper court of 
the Philippines to enforce the civil liability which under the laws 
of the Philippines may arise from the offense. 

Article XIV 
ARREST AND SERVICE OF PROCESS 

1. No arrest shall be made and no process, civil or criminal, 
shall be served within any base except with the permission of the 
commanding officer of such base; but should the commanding 
officer refuse to grant such permission he shall (except in cases 
of arrest where the United States has jurisdiction under 
Article XIII) forthwith take the necessary steps to arrest the 
person charged and surrender him to the appropriate authorities 
of the Philippines or to serve such process, as the case may be, 
and to provide the attendance of the server of such process be- 
fore the appropriate court in the Philippines or procure such 
server to make the necessary affidavit or declaration to prove 
such service as the case may require. 

2. In cases where the service courts of the United States have 

jurisdiction under Article XIII, the appropriate authorities of the 

Philippines will, on request, give reciprocal facilities as regards 

the service of process and the arrest and surrender of alleged 

offenders. 

******* 

Article XX 

MILITARY OR NAVAL POLICE 

It is mutually agreed that there shall be close cooperation on a 
reciprocal basis between the military and naval police forces of 



352 

the United States and the police forces of the Philippines for the 
purpose of preserving order and discipline among United States 
military and naval personnel. 






APPENDIX XVIII 
KOREA. AGREEMENT ON JURISDICTION 1 

Agreement between the United States and Korea relating to 
Jurisdiction over Offenses by United States Forces in Korea. 
July 12, 1950. 5 UST 1408, TIAS 3012, 222 UNTS 228. 

The American Embassy presents its compliments to the Minis- 
try of Foreign Affairs of the Republic of Korea and has the 
honor to state that in the absence of a formal agreement defining 
and setting forth the respective rights, duties and jurisdictional 
limitations of the military forces of the United States (excepting 
the United States Military Advisory Group to Korea, which is 
covered by the agreement signed in Seoul on January 26, 1950) 2 
and the Government of the Republic of Korea, it is proposed that 
exclusive jurisdiction over members of the United States Military 
Establishment in Korea will be exercised by courts-martial of 
the United States. 

It is further proposed that arrests of Korean nationals will be 
made by United States forces only in the event Korean nationals 
are detected in the commission of offenses against the United 
States forces or its members. In the event that arrests of Korean 
nationals are made under the circumstances set forth above, such 
persons will be delivered to the civil authorities of the Republic 
of Korea as speedily as practicable. 

The Ministry of Foreign Affairs and the Government of the 
Republic of Korea will understand that in view of prevailing 
conditions, such as the infiltrations of North Koreans into the 
territory of the Republic, United States forces cannot be sub- 
mitted, or instructed to submit, to the custody of any but United 
States forces. Unless required, owing to the nonexistence of 
local courts, courts of the United States forces will not try na- 
tionals of the Republic of Korea. 

The American Embassy would be grateful if the Ministry of 



1 Came into force on 12 July 1950 by the exchange of the said notes. 
* United Nations, Treaty Series, Vol. 178, p. 97. 



354 

Foreign Affairs would confirm, in behalf of the Government of 
the Republic of Korea, the above-stated requirements regarding 
the status of the military forces of the United States within 

Korea. 

******* 

The Ministry of Foreign Affairs of the Republic of Korea 
presents its compliments to the American Embassy and acknowl- 
edges the receipt of the Embassy's note of July 12, 1950, at 
Traejon. 

The Ministry has the honor to inform the American Embassy 
that the Government of the Republic of Korea is glad to accept 
the propositions as set forth in the Embassy's note of July 12, 
1950, that: 

(1) The United States courts-martial may exercise exclusive 
jurisdiction over the members of the United States Military 
Establishment in Korea ; 

(2) In the event that arrest of Korean nationals by the 
United States forces are made necessary when the former are 
known to have committed offenses against the United States 
forces or its members, such person will be delivered to the 
civil authorities of the Republic of Korea as speedily as practi- 
cable ; and 

(3) The Ministry of Foreign Affairs understands that in view 
of prevailing conditions of warfare, the United States forces 
cannot be submitted to any but United States forces; and that 
courts of the United States forces wiM not try nationals of the Re- 
public of Korea, unless requested owing to the nonexistence of 
local court?. 



APPENDIX XIX 

ETHIOPIA. AGREEMENT CONCERNING 
DEFENSE INSTALLATIONS 

Agreement between the United States and Ethiopia concerning 
Defense Installations in Ethiopia. May 22, 1953. 5 UST 749, 
TIAS 2964, 191 UNTS 59. 

Article II 

The Imperial Ethiopian Government grants to the Government 
of the United States such rights, powers and authority within 
the Installations as are necessary for the establishment, control, 
use and operation of the Installations for military purposes. 
Such rights shall not include the right, power or authority to 
transfer or assign the Installations in whole or in part to, or to 
place them in whole or in part at the disposition of, any third 
state, government or military force. 

Article XVII 

1. Members of the United States forces shall respect the laws 
of Ethiopia and abstain from any activities inconsistent with the 
spirit of this Agreement. The Government of the United States 
shall take appropriate measures to this end. 

2. The United States military authorities shall have the right 
to exercise within Ethiopia all jurisdiction and control over 
United States forces conferred on the United States military 
authorities by the laws and regulations of the United States, 
except as limited by this Article. 

3. Members of the United States forces shall be immune from 
the criminal jurisdiction of Ethiopian courts, and, in matters 
arising from the performance of their official duties, from the 
civil jurisdiction of Ethiopian courts, provided that, in particular 
cases, the United States authorities may waive such immunity. 
In all other cases, Ethiopian courts shall have jurisdiction. 

4. Whenever United States authorities exercise jurisdiction or 



356 

control pursuant to paragraph 2 or this Article, the judicial pro- 
ceedings shall be conducted within the Installations or outside of 
Ethiopia. In such cases the appropriate authorities of the Im- 
perial Ethiopian Government shall, upon request, assist in the 
collection of evidence and in the carrying out of all necessary- 
investigations. Necessary arrangements will be made by the 
appropriate authorities of Ethiopia to secure the presence of 
Ethiopian nationals and other persons in Ethiopia (except mem- 
bers of the United States forces) as witnesses for official in- 
vestigations and for military tribunals, and, in appropriate 
cases, to seize and hand over evidence, exhibits and objects con- 
nected with the offense. The United States authorities shall, in 
like manner, carry out the collection of evidence from members 
of the United States forces and assist the Ethiopian authorities 
in the case of an offense to be tried in the Ethiopian courts. 

5. Ethiopian authorities may arrest members of the United 
States forces outside the Installations for the commission or at- 
tempted commission of an offence, but, in the event of such an 
arrest, the member or members shall be immediately turned 
over to the United States authorities. Except for Ethiopian na- 
tionals and other persons normally resident in Ethiopia, any 
person fleeing from the jurisdiction of the United States forces 
and found in any place outside the Installations may, on request, 
be arrested by the Ethiopian authorities and turned over to the 
United States authorities. 

6. The United States authorities shall deliver to the Ethiopian 
authorities for trial and punishment all Ethiopian nationals and 
other persons normally resident in Ethiopia who have been 
charged by the Ethiopian or the United States authorities with 
having committed offenses within the limits of the Installations. 

7. The Government of the United States shall have the right 
to police the Installations and to take all appropriate measures 
to assure the maintenance of discipline, order and security in 
such Installations. 

8. Outside the Installations, members of the United States 
forces may be employed for police duties by arrangement with 
the appropriate authorities of the Imperial Ethiopian Govern- 
ment insofar as such employment is necessary to maintain dis- 
cipline and order among the United States forces. In such cases, 
Ethiopian security forces with whom members of the United 
States forces may be serving on police duty shall have paramount 



357 

authority with respect to the person or property of persons sub- 
ject to Ethiopian jurisdiction. 

9. Each Government undertakes that persons subject to the 
jurisdiction of its courts who commit contempt or perjury in 
connection with courts-martial proceedings or proceedings of 
other military tribunals, shall be subjected to appropriate puni- 
tive action by its courts. 

10. The Imperial Ethiopian Government undertakes to es- 
tablish such measures of control or zones of access adjacent to 
such Installations as may, from time to time, in the opinion of 
the two Governments be essential for maintenance of the in- 
ternal and external security of the Installations as well as the 
sanitation and health conditions of those Installations. 

Article XXIV 

The term "United States forces" includes members of the 
armed forces of the United States (including dependents of all 
such members) and persons accompanying, serving with, or em- 
ployed by said armed forces (including dependents of all such 
persons) who are subject to the military laws of the United 
States, but excluding indigenous Ethiopian nationals and other 
persons ordinarily resident in Ethiopian territory provided that 
such nationals or other persons are not dependents of members of 
the United States forces. 



APPENDIX XX 

LIBYA. AGREEMENT ON DEFENSE 
FACILITIES IN AGREED AREAS 

Agreement between the United States and Libya on the use of 
Defense Facilities in Agreed Areas in Libya. September 9, 1954. 
5 UST 2449, TIAS 3107. 

Article XX 

JURISDICTION— CRIMINAL MATTERS 

(1) The United States military authorities shall have the right 
to exercise within the United Kingdom of Libya all criminal and 
disciplinary jurisdiction conferred on them by the laws of the 
United States of America over members of the United States 
forces in the following cases, namely : 

(a) Offenses solely against the property of the Government 
of the United States of America, or against the person or 
property of another member of the United States forces, 

(b) Offenses committed solely within the agreed areas, 

(c) Offenses solely against the security of the United States 
of America, including treason, sabotage, espionage or violation 
of any law relating to official secrets, or secrets relating to the 
national defense of the United States of America, 

(d) Offenses arising out of any act or omission done in the 
performance of official duty, and in every such case where such 
criminal and disciplinary jurisdiction exists, the members of the 
United States forces shall be immune from the jurisdiction of the 
Libyan courts. 

(2) In other cases the Libyan courts shall exercise jurisdiction 
unless the Government of the United Kingdom of Libya waived 
its right to exercise jurisdiction. The Government of the United 
Kingdom of Libya will give sympathetic consideration to any 
request from the United States authorities for a waiver of its 
right in cases where the United States authorities consider such 
waiver to be of particular importance, or where suitable punish- 



360 

ment can be applied by disciplinary action without recourse to 
a court. 

(3) The United States and Libyan authorities will assist each 
other in the arrest and handing over to the appropriate authority 
of members of the United States forces for trial in accordance 
with the above provisions, and the Libyan authorities will im- 
mediately notify the United States authorities if they arrest any 
member of the United States forces. The Libyan authorities will, 
if the United States authorities request the release on remand of 
an arrested member of the United States forces, release him 
from their custody on the United States authorities' undertaking 
to present him to the Libyan courts for investigatory proceedings 
and trial when required. 

(4) The United States and Libyan authorities will assist each 
other in the carrying out of all necessary investigations into 
offenses, and in the collection and production of evidence, includ- 
ing the attendance of witnesses at the trial and the seizure and, 
in proper cases, the handing over of objects connected with an 
offense. The handing over of such objects may, however, be made 
subject to their return within the time specified by the authority 
delivering them 

(5) Whenever a member of the United States forces is 
prosecuted in a Libyan court he shall be entitled : 

(a) to be presumed innocent until proved guilty according 
to law in a trial in which he has had the guarantees necessary for 
his defense, 

(b) to a prompt and speedy public trial, 

(c) to be informed, in advance of trial, of the specific charge 
or charges made against him, 

(d) to refuse to testify against himself, 

(e) to be confronted with the witnesses against him, 

(f ) to be permitted full opportunity to examine all witnesses, 

(g) to have compulsory process for obtaining witnesses in 
his favor, if they are within the jurisdiction of the Libyan courts, 

(h) to have legal representation of his own choice for his 
defense or to have free or assisted legal representation under 
the conditions prevailing for the time being in Libya, 

(i) to have his legal representatives present during all stages 
of proceedings against him, 

(j) to have, if he considers it necessary, the services of a 
competent interpreter, 



361 

(k) to communicate with the United States authorities and 
to have a representative of those authorities present at his 
trial, and 

(1) to such other rights as are guaranteed under the con- 
stitution and laws of the United Kingdom of Libya to persons 
on trial in those courts. 

(6) The Libyan authorities will notify the United States au- 
thorities of the result of any trial in a Libyan court of a member 
of the United States forces. 

(7) Witnesses who are alleged to have committed perjury or 
contempt of court in proceedings before the United States service 
tribunals or authorities and who are not subject to the law ad- 
ministered by those tribunals and authorities will be turned over 
to the Libyan authorities. Provision will be made by the laws of 
Libya for the trial and punishment of such offenders. 

(8) The Government of the United States of America will 
have the right to police the agreed areas and to maintain order 
therein and may arrest therein any alleged offenders and, when 
they are triable by the Libyan courts, will forthwith turn them 
over to the Libyan authorities for trial. 

(9) Outside the agreed areas, members of the United States 
forces may be employed on police duties by arrangement with the 
appropriate Libyan authorities. The Libyan authorities shall be 
primarily responsible for the protection of cables carrying light, 
power or communications to any of the agreed areas, whether 
such cables are the property of the Government of the United 
States of America or otherwise, but they may make arrangements 
with the United States authorities for the employment of mem- 
bers of the United States forces for this purpose. In such cases, 
the Libyan police with whom members of the United States forces 
may be serving shall have paramount authority with respect to 
the persons and property of persons who are nationals of or 
ordinarily resident in Libya. 

Article XXVIII 

DEFINITIONS 

In the present Agreement the following expressions have the 
meanings hereby respectively assigned to them : 

"United States forces" includes personnel belonging to the 
armed services of the United States of America and accompany- 
ing civilian personnel who are employed by or serving with such 



362 

services (including the dependents of such military and civilian 
personnel), who are not nationals of, nor ordinarily resident in 
Libya; and who are in the territory of Libya in connection with 
operations under the present Agreement. 



APPENDIX XXI 
LIBYA. MEMORANDUM OF UNDERSTANDING 

Memorandum of Understanding between the United States and 
Libya with respect to Criminal Jurisdiction provisions of Agree- 
ment of September 9, 1954. February 24, 1955. 7 UST 2051, 
TIAS 3607. 

With respect to the "Agreement between the Government of 
the United States of America and the Government of the United 
Kingdom of Libya" signed at Benghazi on September 9, 1954, 
hereinafter referred to as "the Agreement," the two Govern- 
ments have reached the following understanding concerning 
Article XX of the Agreement. 

Under Paragraph (2) of Article XX of the Agreement the 
Government of the United Kingdom of Libya has reserved juris- 
diction over members of the United States forces except as pro- 
vided in Paragraph (1) of Article XX of the Agreement. In 
order to establish a policy which will govern the application of 
the provisions of Paragraph (2) the two Governments agree as 
follows : 

(a) The Government of the United States of America declares 
that it is fully satisfied with the cooperation and understanding 
which the Libyan authorities have shown toward the United 
States military authorities in Libya. 

(b) The Government of the United Kingdom of Libya declares 
that it is fully satisfied with the manner in which the United 
States military authorities have exercised disciplinary authority 
and criminal jurisdiction over members of the United States 
forces. 

(c) The Government of the United States of America recog- 
nizes the interest of the Government of the United Kingdom of 
Libya in exercising the jurisdiction reserved to it in cases of 
particular importance to the United Kingdom of Libya. 

(d) The two Governments recognize that it is in their com- 
mon interest to take steps to ensure the continuation of the good 
relations that prevail between the people of the United Kingdom 



364 

of Libya and the members of the United States forces and also 
to ensure the effective discipline and security of the United 
States forces. To this end, the Government of the United King- 
dom of Libya, in response to the desire of the Government of 
the United States of America, henceforth undertakes to waive its 
criminal jurisdiction in relation to members of the United 
States forces under the terms of the Agreement except in the 
case of an offense committed by a member of the United States 
forces which is considered by the Government of the United 
Kingdom of Libya to be of particular importance to the United 
Kingdom of Libya such as an offence against the safety of the 
Libyan State, an offense against the sovereignty or honor of the 
Libyan State, or an offence which the Libyan State considers to 
be of serious public concern, including sexual offenses which cause 
serious public concern. It is understood with respect to a case 
involving such an offence which is considered of particular im- 
portance to the United Kingdom of Libya that the Libyan au- 
thorities, taking into account the spirit of cooperation expressed 
in Article XX of the Agreement, will in the course of appropriate 
consultations between the Libyan authorities and the United 
States military authorities give sympathetic consideration to a 
request from the United States authorities for a waiver of the 
jurisdiction of the Libyan authorities in such a case. It is also 
understood that a waiver of jurisdiction in a case shall be final 
and thereafter the Libyan authorities will not exercise jurisdic- 
tion in relation to such a case. 

(e) The Government of the United States of America under- 
takes to notify the Libyan authorities of the disposition made by 
the United States military authorities of all cases involving the 
waiver of jurisdiction referred to in the foregoing undertaking 
of the Government of the United Kingdom of Libya. 

The two Governments agree that the policy set forth above 
shall be followed with regard to all cases arising since the time 
of entry into force of the Agreement, namely since twelve o'clock 
noon, Benghazi time, October 30, 1954. 



APPENDIX XXII 

SAUDI ARABIA. AGREEMENT CONCERNING 
DHAHRAN AIRFIELD 

Agreement between Saudi Arabia and the United States con- 
cerning Dhahran Airfield. June 18, 1951. 2 UST 1466, TIAS 
2290, 102 UNTS 73. Extended for five years on April 2, 1957, 
8 UST 403, TIAS 3790. 

I. The term Dhahran Airfield as used in this Agreement means 
the area of land located in the so-called Damman tracts measur- 
ing five statute miles on each side of a square with the center 
located at the terminal building of the existing airdrome. 

II. The members of the Mission, its personnel and employees 
may carry on any social activities on condition that they will 
take into account the local customs and laws in effect in Saudi 
Arabia. 

12. (a) The complete authority and sovereignty inside and out- 
side of Dhahran Airfield is the absolute right of the Saudi 
Arabian Government and it will make arrangements for guarding 
and maintaining the safety of the airport. 

(b) The United States Mission will assign special guards 
for the installations which are used by the Mission and such 
guards will be responsible for such installations under their 
guard inside the airfield. 

(c) The Mission shall comply with the request of the Di- 
rector of the Dhahran Airport in appointing certain responsible 
persons from the Mission to accompany the Saudi patrol guards 
to identify members of the Mission and to cooperate during 
patrol duty. 

13. (a) All United States military personnel, members of the 
Mission, and all civilian employees of the Mission who are 
United States nationals or the nationals of other friendly States 
and their dependents at Dhahran Airfield shall obey all applicable 
laws and regulations of the Kingdom of Saudi Arabia. 

(b) Any offense committed by any of the individuals re- 



366 

f erred to in (a) with the exception of American military per- 
sonnel will be subject to the local jurisdiction of the Kingdom 
of Saudi Arabia. 

(c) Depending on international authority, the Saudi Arabian 
Government agrees that : 

(i) If any member of the armed forces of the United 
States commits an offense inside Dhahran Airfield he will be 
subject to United States military jurisdiction. 

(ii) In the case of any offense committed by a member 
of the armed forces of the United States outside Dhahran Air- 
field at Al Khobar, Dammam, Dhahran, Ras Tanura, the beaches 
south of Al Khobar to Half Moon Bay, and the roads leading to 
these places, the Saudi Arabian authorities will arrest the offender 
and after promptly completing the preliminary investigation will 
turn such person over to the Mission at Dhahran Airfield for 
trial and punishment under American military jurisdiction. 

(iii) Any offense committed by a member of the armed 
forces of the United States outside the places mentioned in (i) 
and (ii) will be subject to the local jurisdiction of the Kingdom 
of Saudi Arabia. 



APPENDIX XXIII 

SPAIN. PROCEDURAL AGREEMENT NO. 16 TO 
THE 26 SEPTEMBER 1953 AGREEMENTS 1 

Jurisdiction Over Members of United States Forces 

1. Pursuant to the authority contained in the Agreements of 
26 September 1953, the following procedures are established for 
the exercising of jurisdiction, control and custody over members 
of the United States Forces alleged to have committed an offense 
in Spanish territory. 

2. a. The term, Chief, Joint United States Military Group, 
shall have reference to the Chief, Joint United States Military 
Group, Spain or to the Senior Military Officer assigned to duty 
with the United States Forces in Spanish territory. 

b. The term "Commander" shall have reference to the Com- 
manding Officer of the United States Forces at any fixed installa- 
tion within the Spanish territory. 

c. The term "Mixed Commission on Jurisdiction" shall have 
reference to a board of Spanish authorities whose principal 
duties shall be to assure that the spirit and intent of the terms 
of the Agreements signed on 26 September 1953 regarding 
criminal jurisdiction over members of the United States Forces 
are effectively carried out, and to implement, enforce and monitor 
the procedures hereafter established. The Commission shall be 
established within the building of the High General Staff in the 
Madrid area. 

d. The term "Members of the United States Forces" has ref- 
erence to military personnel of the United States Armed Forces, 
the technicians and personnel accompanying, serving with or em- 
ployed by said forces who are subject to the military laws of the 
United States and members of the families of the aforemen- 
tioned individuals. 

3. Whenever Spanish authorities apprehend a member of the 
United States Forces for the alleged commission of an offense 



1 4 UST 1876, TIAS 2849. 



368 

which in the judgment of the Spanish authorities requires deten- 
tion or confinement, the following procedure will apply : 

a. The person who is being detained or confined by Spanish 
authorities will, upon disclosure that he is a member of the 
United States Forces, be permitted, if he desires, to communicate 
with his superior authority by telephone or telegraph at the 
earliest opportunity. 

b. The apprehending or detaining authority will, within 
twenty-four hours after the arrest or apprehension, furnish the 
following information to the Mixed Commission on Jurisdiction: 

(1) Name and organization of United States Forces per- 
sonnel involved and, if military, the grade and service number. 

(2) Type of offense committed. 

(3) Time, date and place offense committed. 

(4) Disposition of persons involved. 

(5) Investigative or security agency involved and loca- 
tion thereof. 

(6) Description of identifying documents in the possession 
of the persons involved. 

(7) Any other pertinent information. 

c. Immediately upon receipt of the aforementioned informa- 
tion, the Mixed Commission on Jurisdiction, or a member thereof, 
will relay all available data to the Chief, Joint United States 
Military Group, or his designated representative. In this respect, 
the Mixed Commission on Jurisdiction will make arrangements to 
be operative twenty-four hours a day and seven days a week. 

d. When United States authorities reasonably believe that 
the individual being detained or confined is a member of the 
United States Forces, the Chief, Joint United States Military 
Group, or his designated representative, will so certify to the 
Mixed Commission on Jurisdiction, (or a member thereof when 
the Mixed Commission on Jurisdiction is not in session) and will 
further request that the alleged offender be released into the 
custody of United States military authorities. The request will 
indicate the approximate time that the individual appointed to 
take the alleged offender into custody will present himself to the 
detaining authorities. 

e. The Mixed Commission on Jurisdiction, or a member 
thereof, will honor the certification and request and will instruct 
the detaining or confining authority to release the alleged offender 
to the custody of United States military authorities. 



369 

f . Under some circumstances, United States military authori- 
ties may conclude that a guard is not required to return an 
alleged offender to United States military control. The afore- 
mentioned request will so indicate, and in these cases the Mixed 
Commission on Jurisdiction, or a member thereof, will arrange 
for immediate release of the alleged offender. 

g. The Chief, Joint United States Military Group, or a "Com- 
mander," whichever is more convenient, will evaluate all evidence 
furnished by Spanish authorities and may conduct a supple- 
mentary investigation to determine all the facts and circum- 
stances of the case. If the evaluation indicates that the offense 
is punishable under the Uniform Code of Military Justice, as set 
out in Manual for Courts-Martial, U.S. 1951 (as interpreted by 
judicial decisions) and that the alleged offender is a member of 
the United States Forces, the Chief, Joint United States Military 
Group, or his representative, will so certify to the Mixed Com- 
mission on Jurisdiction. The certification will indicate "prima 
facie" the article of the Uniform Code of Military Justice which 
the alleged offender may have violated. 

h. The Mixed Commission on Jurisdiction may ordinarily ac- 
cept this certification as conclusive proof of the facts certified, 
and will issue an order notifying the competent Spanish authori- 
ties that the United States Forces authorities will exercise juris- 
diction in the case. 

i. In those cases where the Mixed Commission on Jurisdic- 
tion takes exception to the certification referred to in paragraph 
3g supra, the Mixed Commission on Jurisdiction shall prepare a 
brief of all the facts and circumstances of the case and the rea- 
sons for taking such exception. This brief shall be made in 
duplicate, one to be forwarded to the Spanish Minister of Justice 
and the other to the Chief, Joint United States Military Group or 
their delegates. These authorities shall, in consultation with each 
other, resolve the question presented, and their decision shall be 
binding and conclusive upon Spanish and United States authori- 
ties alike. 

j. If a member of the United States Forces is apprehended 
by United States authorities for the commission of an offense 
punished by Spanish laws, a report thereof and the aforemen- 
tioned certifications will be submitted to the Mixed Commission 
on Jurisdiction immediately but the individual shall be retained 
in the custody of the United States authorities. 



370 

4. The Chief, Joint United States Military Group, or the 
" Commander, " as the case may be, will, subsequent to the de- 
termination that the offense allegedly committed is punishable 
under the Uniform Code of Military Justice and that the offender 
is a member of the United States Forces, conduct an extensive 
investigation of the alleged offense and will thereafter make a 
determination as to what further action will be taken concerning 
the criminal aspects of the case which shall be binding upon all 
concerned. The offender shall thereafter be immune from prose- 
cution or suit in Spanish courts or tribunals for the criminal as- 
pects of the same offense. 

5. In some instances, members of the United States Forces may 
commit minor offenses which in the judgment of Spanish authori- 
ties do not require arrest or confinement or may become involved 
in accidents which come to the attention of Spanish authorities. 
These incidents will be reported to the Mixed Commission on 
Jurisdiction in writing and will be transmitted so as to reach the 
addressee within four days after the occurrence. These reports 
will not be acted upon by the Mixed Commission on Jurisdiction 
but will be transmitted to the Chief, Joint United States Military 
Group for whatever action he may deem appropriate in each case. 

6. When necessary, branch offices of the Mixed Commission on 
Jurisdiction shall be established in cities adjacent to or in the 
vicinity of military installations where members of the United 
States Forces are stationed, or assembled, in sufficient numbers 
to warrant such action. The time and place of establishment shall 
be determined by Spanish and United States authorities. The 
branch offices shall operate in coordination with the Mixed Com- 
mission on Jurisdiction in Madrid and shall be guided by the same 
principles and procedures as those established for the Mixed 
Commission on Jurisdiction in the Madrid area. 

7. Whenever a member of the United States Forces commits 
an offense solely against the property of the United States or 
solely against the property or person of another member of the 
United States Forces and the offense is committed on a military 
reservation in an area which is under the control of a United 
States "Commander," the offender will, if he is apprehended by 
Spanish military police, immediately be turned over into the 
custody of United States military authorities for disciplinary ac- 
tion. No report of the offense will be made to the Mixed Com- 
mission on Jurisdiction and the United States "Commander's" 



371 

disposition of the case shall be final and binding on all concerned. 
In all other cases of offenses committed on a military reservation, 
the procedure established in other paragraphs shall apply. 

8. a. In those cases where Spanish authorities desire to prose- 
cute a member of the United States Forces in Spanish courts, a 
request for such jurisdiction, and the reasons therefor, will be 
made to the Chief, Joint United States Military Group, through 
the Mixed Commission on Jurisdiction in Madrid, Spain. The 
Chief, Joint United States Military Group, will give full con- 
sideration to any request formulated by the competent Spanish 
authorities and if he accedes to the request, he or his delegated 
representative will execute a waiver of jurisdiction which will 
confer upon Spanish authorities the right to proceed to trial of 
the individual summoned. 

b. The custody of a member of the United States Forces 
over whom Spanish authorities are to exercise jurisdiction, be- 
cause of waiver of jurisdiction by United States authorities or be- 
cause the offense charged is not punishable under the Uniform 
Code of Military Justice, shall remain with the United States au- 
thorities until such time as the trial is concluded and the 
sentence pronounced. The United States authorities shall accept 
the responsibility of assuring the presence of the offender at the 
appointed time of trial. 

c. Whenever a member of the United States Forces is 
prosecuted by the Spanish authorities, he shall be entitled to the 
same rights and privileges as those enjoyed by Spanish citizens 
in connection with judicial proceedings. The principal rights to 
which a member of the United States Forces shall be entitled are : 

( 1 ) Protection against Ex Post Facto law. 

(2) Protection against Bills of Attainder. 

(3) A prompt and speedy trial. 

(4) Be informed, in advance of trial, of the specific 
charge or charges made against him. 

(5) Have a public trial and be present at his trial. 

(6) Have the burden of proof placed upon the prosecution. 

(7) Be tried by an impartial court. 

(8) Be protected from the use of a confession obtained 
by illegal or improper means. 

(9) Be confronted with the witnesses against him. 

(10) Have compulsory process for obtaining witnesses in 



372 

his favor, if they are within the jurisdiction of the government 
of Spain. 

(11) Have legal representation of his own choice for his 
defense during trial and pretrial procedures or shall be furnished 
free legal counsel under the same terms and conditions applicable 
to Spanish citizens. 

(12) If he considers it necessary, to have the services of 
a competent interpreter. 

(13) Have a representative of the United States Forces 
present at his trial. 

9. a. The authorities of the United States and Spain will assist 
each other in the collection of evidence, conducting investigations 
and securing the presence of witnesses for investigations and 
trials. The Mixed Commission on Jurisdiction and representa- 
tives of the Joint United States Military Group, Spain, shall con- 
fer frequently for the purpose of developing and maintaining a 
satisfactory method of operation. 

b. Spanish nationals and other persons in territory under 
Spanish jurisdiction, (except members of the United States 
Forces) who are required to appear as witnesses before United 
States Military Courts will be paid fees and allowances at rates 
to be determined by the Chief, Joint United States Military 
Group in coordination with pertinent Spanish authorities. 

c. United States authorities shall advise the Mixed Commis- 
sion on Jurisdiction of the results of any United States trial in 
which the accused was an offender against Spanish laws. Spanish 
authorities shall advise the Chief, Joint United States Military 
Group of the results of trials in those cases where a member of 
the United States Forces was prosecuted in Spanish courts. 

10. a. Members of the United States Forces shall not be sub- 
ject to the civil jurisdiction of Spanish courts or authorities for 
acts or omissions arising out of the performance of their official 
duties. A certificate from the United States military authorities 
attesting the status in this regard of a member of the United 
States Forces shall be considered conclusive by Spanish authority. 

b. None of the foregoing procedures shall prejudice the 
rights of the injured party to indemnification either by following 
the ordinary Spanish civil procedures or by making an adminis- 
trative claim for the damages incurred under the applicable laws 
of the United States. The United States authorities shall ad- 
judicate all claims presented expeditiously. Persons who elect to 



373 

undertake a suit in the Spanish civil courts shall thereafter be 
barred from seeking administrative relief from the United States 
government for claims arising out of the same act. 

MADRID, THE 4TH OF FEBRUARY 1955 



FOR THE HIGH 
GENERAL STAFF: 



FOR THE DEPARTMENT 

OF DEFENSE OF 

THE UNITED STATES 

OF AMERICA: 



/S/ 
JUAN VIGON 
Lieutenant General 
The Chief 



/S/ 
A. W. KISSNER 
Major General 
USAF 



APPENDIX XXIV 

WEST INDIES FEDERATION. AGREEMENT 
CONCERNING UNITED STATES DEFENCE AREAS 

Agreement with the Federation of the West Indies, February 
10, 1961, 12 UST & OIA 408, TIAS 4734. 

Article I 

DEFINITIONS 

In this Agreement, the expression : 

"Contractor personnel" means employees of a United States 
contractor who are not ordinarily resident in the Federation and 
who are there solely for the purposes of this Agreement ; 

"Defence area" means an area in respect of which the Govern- 
ment of the United States of America (hereinafter called "the 
United States Government") is for the time being entitled to 
have and enjoy, in accordance with the terms and conditions of 
this Agreement, the rights, power and authority described in 
Article II ; 

"Dependents" means the spouse and children under 21 of a 
person in relation to whom it is used ; and, if they are dependent 
upon him for their support, the parents and children over 21 
of that person ; 

"Federation" means the Federation of The West Indies; 

"Members of the United States Forces" means : 

(a) military members of the United States forces on active 
duty; 

(b) civilian personnel accompanying the United States 
Forces and in their employ who are not ordinarily resi- 
dent in the Federation and who are there solely for the 
purposes of this Agreement ; and 

(c) dependents of the persons described in (a) and (b) 
above ; 

"Military purposes" means : 

(a) the installation, construction, maintenance and use of 



376 

military equipment and facilities including facilities for 
the training, accommodation, hospitalisation, recreation, 
education and welfare of members of the United States 
Forces ; and 
(b) all other activities of the United States Government, 
United States contractors and authorised service organi- 
sations carried out for the purposes of this Agreement ; 
"Territory" means any Territory of the Federation in which 
there exists an area which is, or is treated as, a defence area; 
and "the Territory" means the Territory concerned ; 

"United States contractor" means any person, body or corpora- 
tion ordinarily resident in the United States of America that is 
in the Territory for the purposes of this Agreement by virtue of 
a contract with the United States Government, and includes a 
subcontractor ; 

"United States Forces" means the land, sea and air armed 
services of the United States, including the Coast Guard. 

Article II 

GENERAL DESCRIPTION OF RIGHTS 

The United States Government shall have and enjoy, in ac- 
cordance with the terms and conditions of this Agreement, the 
rights, power and authority which are necessary for the develop- 
ment, use, operation and protection for military purposes of the 
defence areas which are described in the Annexes [ x ] hereto. 
The United States Government shall have and enjoy such rights 
of access, rights of way and easements as may be necessary for 

these purposes. 

******* 

Article IX 

CRIMINAL JURISDICTION 

( 1 ) Subject to the provisions of this Article, 

(a) the military authorities of the United States shall have 
the right to exercise within the Territory all criminal and dis- 
ciplinary jurisdiction conferred on them by United States law 
over all persons subject to the military law of the United States; 

(b) the authorities of the Territory shall have jurisdiction 
over members of the United States Forces with respect to offences 



1 Post, p. 16. (Author's note: The Annexes referred to in this Article are 
not included in this Appendix). 



377 

committed within that Territory and punishable by the law in 
force there. 

(2) (a) The military authorities of the United States shall 
have the right to exercise exclusive jurisdiction over persons sub- 
ject to the military law of the United States with respect to 
offences, including offences relating to security, punishable by 
the law of the United States but not by the law in force in the 
Territory. 

(b) The authorities of the Territory shall have the right to 
exercise exclusive jurisdiction over members of the United States 
Forces with respect to offences, including offences relating to 
security, punishable by the law in force in the Territory but not 
by the law of the United States. 

(c) For the purposes of this paragraph and of paragraph 
(3) of this Article, an offence relating to security shall include 

(i) treason; 

(ii) sabotage, espionage or violation, of any law relating 
to official secrets or secrets relating to national defence. 

(3) In cases where the right to exercise jurisdiction is con- 
current the following rules shall apply : 

(a) The military authorities of the United States shall have 
the primary right to exercise jurisdiction over a member of the 
United States Forces in relation to 

(i) offences solely against the property or security of the 
United States or offences solely against the person or property 
of another member of the United States Forces ; 

(ii) offences arising out of any act or omission done in the 
performance of official duty. 

(b) In the case of any other offence the authorities of the 
Territory shall have the primary right to exercise jurisdiction. 

(c) If the authorities having the primary right decide not 
to exercise jurisdiction they shall notify the other authorities as 
soon as practicable. The United States authorities shall give 
sympathetic consideration to a request from the authorities of the 
Territory for a waiver of their primary right in cases where the 
authorities of the Territory consider such waiver to be of par- 
ticular importance. The authorities of the Territory will waive, 
upon request, their primary right to exercise jurisdiction under 
this Article, except where they in their discretion determine and 
notify the United States authorities that it is of particular im- 
portance that such jurisdiction be not waived. 



378 

(4) The foregoing provisions of this Article shall not imply 
any right for the military authorities of the United States to 
exercise jurisdiction over persons who belong to, or are ordinarily 
resident in, the Federation unless they are military members of 
the United States Forces. 

(5) (a) To the extent authorised by law, the authorities of 
the Territory and the military authorities of the United States 
shall assist each other in the service of process and in the arrest 
of members of the United States Forces in the Territory and in 
handing them over to the authorities which are to exercise juris- 
diction in accordance with the provisions of this Article. 

(b) The authorities of the Territory shall notify promptly 
the military authorities of the United States of the arrest of any 
member of the United States Forces. 

(c) Unless otherwise agreed, the custody of an accused mem- 
ber of the United States Forces over whom the authorities of a 
Territory are to exercise jurisdiction shall, if he is in the hands 
of the United States authorities, remain with the United States 
authorities until he is charged. In cases where the United States 
authorities may have the responsibility for custody pending the 
completion of judicial proceedings, the United States authorities 
shall, upon request, make such a person immediately available to 
the authorities of the Territory for purposes of investigation and 
trial and shall give full consideration to any special views of such 
authorities as to the way in which custody should be maintained. 

(6) (a) To the extent authorised by law, the authorities of 
the Territory and of the United States shall assist each other in 
the carrying out of all necessary investigations into offences, in 
providing for the attendance of witnesses and in the collection 
and production of evidence, including the seizure and, in proper 
cases, the handing over of objects connected with an offence. The 
handing over of such objects may, however, be made subject to 
their return within the time specified by the authorities deliver- 
ing them. 

(b) The authorities of the Territory and of the United 
States shall notify one another of the disposition of all cases in 
which there are concurrent rights to exercise jurisdiction. 

(7) A death sentence shall not be carried out in any Territory 
by the military authorities of the United States if the legislation 
of that Territory does not provide for such punishment in a 
similar case. 



379 

(8) Where an accused has been tried in accordance with the 
provisions of this Article and has been acquitted, or has been con- 
victed and is serving, or has served, his sentence or has been 
pardoned, he may not be tried again for the same offence within 
the Federation. Nothing in this paragraph shall, however, pre- 
vent the military authorities of the United States from trying a 
military member of the United States Forces for any violation 
of rules of discipline arising from an act or omission which con- 
stituted an offence for which he was tried by the authorities of 
a Territory. 

(9) Whenever a member of the United States Forces is prose- 
cuted by the authorities of a Territory he shall be entitled — 

(a) to a prompt and speedy trial ; 

(b) to be informed in advance of trial of the specific charge 
or charges made against him ; 

(c) to be confronted with the witnesses against him ; 

(d) to have compulsory process for obtaining witnesses in 
his favour if they are within the jurisdiction of the Territory; 

(e) to have legal representation of his own choice for his 
defence or to have free or assisted legal representation under the 
conditions prevailing for the time being in the Territory ; 

(f ) if he considers it necessary, to have the services of a 
competent interpreter ; and 

(g) to communicate with a representative of the United 
States and, when the rules of the court permit, to have such a 
representative present at his trial which shall be public except 
when the court decrees otherwise in accordance with the law in 
force in the Territory. 

(10) Where a member of the United States Forces is tried by 
the military authorities of the United States for an offence com- 
mitted outside a defence area or involving a person, or the 
property of a person, other than a member of the United States 
Forces, the aggrieved party and representatives of the Territory 
and of the aggrieved party may attend the trial proceedings ex- 
cept where this would be inconsistent with the rules of the court. 

(11) A certificate of the appropriate United States command- 
ing officer that an offence arose out of an act or omission done in 
the performance of official duty shall be conclusive, but the com- 
manding officer shall give consideration to any representation 
made by the Government of the Territory. 

(12) Regularly constituted military units or formations of the 



380 

United States Forces shall have the right to police the defence 
areas. The military police of the United States Forces may take 
all appropriate measures to ensure the maintenance of order and 
security within such defence areas. 

(13) In this Article, a reference to the authorities of a Terri- 
tory includes, where appropriate, the authorities of the Federa- 
tion. 

******* 



APPENDIX XXV 

AUSTRALIA. AGREEMENT CONCERNING 
THE STATUS OF UNITED STATES FORCES 

IN AUSTRALIA 

Agreement between the United States and Australia. May 9, 
1963. TIAS5349. 

Article 1 

In this Agreement, except where the contrary intention ap- 
pears : 

"Australia" includes the territories under the authority of the 
Commonwealth of Australia ; 

"members of the United States Forces ,, means personnel be- 
longing to the land, sea or air armed services of the United 
States in Australia in connection with activities agreed upon by 
the two Governments, other than those for whom status is pro- 
vided otherwise than under this Agreement ; 

"members of the civilian component" means civilian personnel 
in Australia in connection with activities agreed upon by the 
two Governments who are neither nationals of, nor ordinarily 
resident in, Australia, but who are : 

(a) employed by the United States Forces or by military sales 
exchanges, commissaries, officers' clubs, enlisted men's clubs or 
other facilities established for the benefit or welfare of United 
States personnel and officially recognised by the United States 
authorities as nonappropriated fund activities ; or 

(b) serving with an organisation which, with the approval of 
the Australian Government, is accompanying the United States 
Forces ; 

"dependant" means a person in Australia who is the spouse of, 
or other relative who depends for support upon, a member of the 
United States Forces or of the civilian component. 



382 

Article 8 

(1) Subject to the provisions of this Article : 

(a) the military authorities of the United States shall have 
the right to exercise within Australia all criminal and 
disciplinary jurisdiction conferred on them by the law 
of the United States over all persons subject to the mili- 
tary law of the United States ; 

(b) the authorities of Australia shall have jurisdiction over 
members of the United States Forces and of the civilian 
component and dependants with respect to offences com- 
mitted within Australia and punishable by the law of 
Australia. 

(2) (a) The military authorities of the United States shall 
have the right to exercise exclusive jurisdiction over persons sub- 
ject to the military law of the United States which respect to 
offences, including offences relating to its security, punishable 
by the law of the United States, but not by the law of Australia. 

(b) The authorities of Australia shall have the right to 
exercise exclusive jurisdiction over members of the United States 
Forces and of the civilian component and dependants with respect 
to offences, including offences relating to the security of Australia, 
punishable by the law of Australia but not by the law of the 
United States. 

(c) For the purposes of this paragraph and paragraph (3) 
of this Article, an offence relating to the security of a State shall 
include: 

(i) treason against the State ; 
(ii) sabotage, espionage or violation of any law relating to 

official secrets of that State, or secrets relating to the 

national defence of that State. 

(3) In cases where the right to exercise jurisdiction is con- 
current the following rules shall apply : 

(a) The military authorities of the United States shall have 
the primary right to exercise jurisdiction over persons 
subject to the military law of the United States in rela- 
tion to : 
(i) offences solely against the property or security of 
the United States, or offences solely against the 
person or property of a member of the United 
States Forces, the civilian component or a de- 
pendant; 



383 

(ii) offences arising out of any act or omission done in 
the performance of official duty. 

(b) In the case of any other offence the authorities of 
Australia shall have the primary right to exercise juris- 
diction. 

(c) If the State having the primary right decides not to 
exercise jurisdiction, it shall notify the authorities of the 
other State as soon as practicable. The authorities of 
the State having the primary right shall give sympa- 
thetic consideration to a request from the authorities of 
the other State for a waiver of its right in cases where 
that other State considers such waiver to be of par- 
ticular importance. 

(4) The foregoing provisions of this Article shall not confer 
on. the military authorities of the United States any right to 
exercise jurisdiction over persons who are nationals of or 
ordinarily resident in Australia unless they are members of the 
United States Forces. 

(5) (a) The military authorities of the United States and the 
authorities of Australia shall assist each other in accordance with 
arrangements to be agreed to by them in the arrest of members 
of the United States Forces or of the civilian component or of 
dependants in Australia and in handing them over to the au- 
thority which is to exercise jurisdiction in accordance with the 
above provisions. 

(b) The authorities of Australia shall notify promptly the 
military authorities of the United States of the arrest of any 
member of the United States Forces or of the civilian component 
or of a dependant. 

(c) The custody of an accused member of the United States 
Forces or of the civilian component or of a dependent over whom 
Australia is to exercise jurisdiction shall, if he is in the hands of 
the United States authorities, remain with the United States to 
the extent authorised by United States law until he is charged 
by Australia. 

(6) (a) The military authorities of the United States and the 
authorities of Australia shall assist each other in the carrying out 
of all necessary investigations into offences, and in the collection 
and production of evidence, including the seizure of and, in proper 
cases, the handing over of objects in connection with an offence. 
The handing over of such objects may, however, be made subject 



384 

to their return within any reasonable time specified by the au- 
thority delivering them. 

(b) The military authorities of the United States and the 
authorities of Australia shall notify each other of the disposal of 
all cases in which there are concurrent rights to exercise juris- 
diction. 

(7) (a) A death sentence shall not be carried out in Australia 
by the military authorities of the United States. 

(b) The authorities of Australia shall give sympathetic con- 
sideration to a request from the military authorities of the United 
States for assistance in carrying out a sentence of imprisonment 
pronounced by the authorities of the United States under the pro- 
visions of this Article within Australia. 

(8) Where an accused has been tried in accordance with the 
provisions of this Article either by the military authorities of the 
United States or by the authorities of Australia and has been ac- 
quitted, or has been convicted and is serving, or has served, his 
sentence or has been pardoned or has had sentence suspended, he 
may not be tried again for the same offence within Australia. 
However, nothing in this paragraph shall prevent the military 
authorities of the United States from trying a member of the 
United States Forces for any violation of rules of discipline aris- 
ing from an act or omission which constituted an offence for 
which he was tried by the authorities of Australia. 

(9) Whenever a member of the United States Forces or of the 
civilian component or a dependant is prosecuted under the juris- 
diction of Australia he shall be entitled : 

(a) to a prompt and speedy trial ; 

(b) to be informed, in advance of trial, of the specific 
charge or charges to be made against him ; 

(c) to be confronted with the witnesses against him ; 

(d) to have compulsory process for obtaining witnesses in 
his favour, if they are within the jurisdiction of 
Australia ; 

(e) to have legal representation of his own choice for his 
defence or to have free or assisted legal representation 
under the conditions prevailing for the time being in the 
part of Australia in which he is being prosecuted ; 

(f) if he considers it necessary, to have the services of a 
competent interpreter ; and 

(g) to communicate with a representative of the United 



385 

States Government and, when the rules of the court per- 
mit, to have such a representative at his trial. 

Article 20 

(1) Regularly constituted military units or formations of the 
United States Forces shall have the right to police any camps, es- 
tablishments or other premises or areas of which the United 
States Forces have exclusive occupation as the result of arrange- 
ment with the Australian Government. United States military 
police may take all appropriate measures to ensure the mainte- 
nance of order and security in such premises or areas. 

(2) Outside such premises and areas, United States military 
police will be employed only subject to arrangements with the 
appropriate Australian authorities and in liaison with such ap- 
propriate Australian authorities and in so far as such employ- 
ment: 

(a) is appropriate to provide for the protection of United 
States installations in premises or areas of which the 
United States Forces have the use, but not exclusive 
occupation ; or 

(b) is necessary to maintain discipline and order among the 
members of the United States Forces and to ensure their 
security. 

(3) The United States Government may, after appropriate 
consultation in any case between the relevant authorities of the 
two Governments, designate areas comprising buildings or por- 
tions of buildings or installations in premises or areas of which 
the United States Forces have use or occupation to be areas into 
which only personnel authorised by the local United States Com- 
mander may enter. The United States Forces will be responsible 
for the internal security of areas so designated. 



INDEX 



Acts in performance of duty, immunity for 
Act of State Doctrine, 34; 212; 214 

Place of act, relevance of, 35 et seq. 
Agents of government 
Armed forces as, 25 
General rule, 32; 35; 38 et seq.; 58 
Municipal law, rule of, 33 
British Crown, agents of, 33 
Agreements other than NATO, recognition in, 229 et seq. 
Brussels Treaty Powers, denial of immunity, 145, n. 11; 223 
Determination that the offense was duty-connected, 232 et seq. 

See also determination that offense was duty-connected. 
Duty status, acts while in, distinguished, 70 et seq. ; 218 ; 226 
International law, rule regarding, 219 ; 222 ; 231 
NATO agreement, 222 
Functional basis for immunity, 212 

International law, rule regarding, 32 et seq; 58; 211; 216; 219 
Inter se offenses and, 223 ; 230 

Military operations, acts in course of, distinguished, 213 
NATO agreement, 222; 224 

Interpretation, difficulties and differences, 225 
Commander control of, relevance, 227 
"Line of duty", 225; 227 
"Offenses arising out of", 226 ; 229 
"Scope of employment", 226; 227 
Specific criminal intent, 227, n. 31 
Procedure, determination that act was in performance of duty. 

See determination that offense was duty-connected. 
Service commande, 220; 227 
Sovereignty, concept of, and, 212, n. 3 
Superior orders, 212 
Municipal law, 213 
Victim, nationality of, importance attached to, and, 223 ; 230 et seq. 
Warships, crews of, 64; 74 
Writers, views of, 219 
Act of State. See acts in performance of duty. 

Agents of foreign state, immunity for official acts. See acts in performance 
of duty. 

387 



388 

Agents of foreign state, personal immunity of, 27 ; 82 

Majority not entitled to, 28 
American law, applicability to offenses abroad, 5; 11; 19; 178 
Aliens, territorial jurisdiction extends to, 3. 
Allied Forces Act, 1940 [United Kingdom], 127; 141; 155 
Allied governments, World War II agreements with United States, exclusive 

jurisdiction, 134, n. 58 
Anglo-French Declaration, World War I, 116; 159, n. 6 
Armed forces, visiting, jurisdiction over and immunity of. 
(See also enforcement jurisdiction; warships, crews of; exclusive juris- 
diction.) 

International law, rule of. Attitudes and practice of states. 
Australia, 137; 141 
Belgium, 115 et seq; 148, n. 17 
Brussels Treaty Powers, 145 
Canada, 135; 142 
Egypt, 138 

France, 115 et seq; 143; 143, n. 10 
Italy, 143, n. 10; 148, n. 10 
Japan, 145 
Marshall, C. J., 80 
Netherlands, 148, n. 10 

United Kingdom, 119; 124; 127; 129; 142; 143 
United States, 79; 120; 129; 131; 148 
Writers, 79; 81 
Members of armed forces, interests of 
Citizens, comparison with those of, 96 ; 98 
Civil rights, 99 ; 258 et seq. 
Denial of justice, protected by doctrine of, 96 
Involuntary, presence in receiving state, 98 
Law, unfamiliar system of, 99 
Morale, 96 

Nationals, fellow, trial by, 100 
Prejudice, 101 
Relevance of, 110 
Receiving states, interests of 

Civil authorities, supremacy of, 104 
Equal justice under law, 107 
Order, maintenance of, 102 
Protection of citizens, 148 
Sending states, interests of 
Control of forces, 94; 110 

Nuclear weapons, development of, 95; 110 
Discipline, need to maintain, 84; 86; 109 
Extraterritoriality, fiction of, 83 
Military exigency, 83; 84; 87; 109 
Nationality, 85 
Protective principle, 86 



389 

Representative character of armed forces, 82 
Sovereignty, 83, n. 12 

B 

Belgium, agreement between government in exile of, and United Kingdom, 114 
Brussels Treaty Powers, agreement on status of forces, 145; 223 



Canada 

Exchange of Notes, 203, n. 18 
Status of U.S. Forces, World War II, 135 
Visiting Forces (United States of America) Act, 142 
Citizens of receiving state, jurisdiction of sending state over. See enforce- 
ment jurisdiction, citizens of receiving state; enforcement jurisdiction, 
witnesses ; police power. 
Liberating armies, World War II, 114 
Protection of, from, 116; 168; 173 
World War I, 116; 118 
Civil authority, supremacy of, municipal law, relevance of, 104; 106; 131; 

136; 212 
Civilians and dependents 
Armed forces, possibility of incorporation in, 181 

Civil courts, trial by American, as alternative to court-martial, 176, 178 
Court-martial jurisdiction over, NATO agreement assumed, 157 
Discipline as requiring control over, 94; 164 
Immunity of, NATO agreement, 162 et seq. 
International law, rule of, 164 
Military exigency as requiring enforcement jurisdiction in sending state 

over, 89 
Nationality, relevance of, 166; 173 
Practice regarding immunity of, 162, n. 14 
Status, significance of, apart from immunity, 171; 183 
Unconstitutional, trial of, by courts-martial, 176 
Impact of unconstitutionality, 179 
Civil rights, member of a force, 258 et seq. 

See also armed forces, visiting, members of armed forces, interests of 
Death penalty, 129; 258; 259 
Double jeopardy, 258; 259 
Receiving state, against, 259 

Agreements other than NATO, 260 
NATO agreement, 260 
Senate resolution, 261 
Sending state, against, 258 
Trial, place of, 130; 134; 259 
Combat zones, jurisdiction of military commander in, 115; 118, n. 18 and 20 
Competence of state limited only by prohibitory rules, 2 
Concurrent jurisdiction, resolution of problems of, 155 
Consent, implied, as basis of immunity, armed forces, 59 



390 

Constitutional law 

Court-martial jurisdiction over civilians and dependents 
NATO Agreement assumed constitutionality, 157 
Unconstitutionality, 176 

Impact under exisiting agreements, 179 
Courts-martial, sending state, right to sit, 88 ; 256 
Criminal law of another state, enforcement of 
General rule, 2 

Military law and local law, 103 

Police, local, aid to visiting forces, 92; 120; 133; 249 
Criminality, common, relevance to jurisdiction, 9; 15; 35, n. 38 
Custody, right to, of accused 

Agreements other than NATO, 255 
Jurisdiction, separable issue from, 256 
NATO Agreement, 254 

Supplemental agreements, Netherlands & Greece, 254 
West Germany, 254 
Czechoslovakia, agreement with United Kingdom, World War II, 128; 244 

D 

Death penalty, limitations on right of sending state to exact, 129; 258; 259 
Dependents. See also civilians and dependents. 

Agreements, status under, other than NATO Agreement, 171 
Courts-martial, unconstitutionality of trial of, by, 176 

Impact of holding under existing agreements, 179 
Discipline as requiring complete control over, 90 
International law, rule of, 170 
Inter se offenses, offenses against, as, 189 ; 190 

Military exigency as requiring enforcement jurisdiction in sending state, 89 
Nationality, relevance of, 168; 173 
NATO Agreement, status under, 162 et seq.; 170; 174 
Status, significance of, apart from immunity, 171; 183 
Determination that offense was duty-connected 
Australia, agreement, 237 

Certificate of commanding officer, 233, n. 39 ; 234 et seq. 
Certificate of foreign office, analogy of, 233 
Commanding officer, basis for permitting determination by, 233 
Custody as basis of jurisdiction to determine, 232 
Japan, agreement, 236 
International law, rule of, 234 
NATO agreement, 234 
Members, rules of 

France, 236 

Italy, 236 

Turkey, 236 

United Kingdom, 235 

West Germany, 237 

Philippines, agreement, 237 



391 



West Indies, Federation of, agreement, 237 
Negotiators, understanding of, 234, n. 43 
Diplomat, functions of, and diplomatic immunity, 28 
Diplomatic immunity 

Diplomat, functions of, and diplomatic immunity, 28 
Extraterritoriality, fiction of, and, 26 
Functional basis for, 26 ; 40 

League of Nations, Covenant of, provisions on, 30 
Officials entitled to, 27 
Respect for sending state as basis for, 26 
United Nations, Charter of, provisions on, 30 
Vienna Convention on Diplomatic Relations, 39 
Discipline, need to maintain, as basis for immunity 
Civilians and dependents, 90 

Control, complete, of commander as essential to, 87; 93; 94; 110 
Civil control over military, municipal law, relevance of, 107 
Dependents, civilians and, 90 

Enforcement jurisdiction, sending state required for, 88 
Land forces, 84, 86 

Nuclear weapons, relevance of development of, 95 
Warships, crews of, 65 
Double jeopardy, 194; 258; 259 
Duty status, relevance of 
NATO agreement, 160 
Warships, crews of, 70 et seq. 
Duty status, temporary, relevance of. See also leave, members of armed 
forces on 

Agreements, other than NATO, 161 
NATO agreement, 160 
Enforcement jurisdiction 

Camps, British position on exercise of outside, World War I, 120; 123. 

See police power. 
Citizens of receiving state, sending state's over, 139 
Lack of, handicap to sending state, 92; 104 
Liberating armies, World War II, 114 
NATO agreement, 249 ; 256 
World War 1, 118 
Civil courts, exercise by, of sending state in receiving state, 176 

In sending state, 178 
Civilians and dependents, sending state's right to exercise over, 89 

Military exigency as requiring, 89 
Consent of receiving state, necessity for, 248 
Custody, right to, of accused, 253 et seq. 

See custody. 
Death penalty, denial of right to exact, 129; 258; 259 
Discipline, maintenance of, requires in sending state, 87 et seq; 247. 

See Discipline, need to maintain. 
Equal justice under law, relevance of, 107 



392 

Limitations imposed by receiving state on sending state's, 129 ; 

130, n. 51; 134; 247 
Merchant ships 

Flag state, right to exercise on, in foreign port, 52 

Littoral state, right to exercise on, 52 
Police power, receiving state's, use of in aid of sending state, 92 ; 

130, n. 51; 133; 249 
Police power, sending state's. See police power. 
Recognition of sending state's right to exercise, 121; 128; 132; 139 

Denial of right by Italy, 144 
Sending state, less than complete, 247 
Supervisory, jurisdiction of receiving state over sending state's 

exercise of, 91; 109; 121; 134 
Territorial, exclusively, 15; 17; 88 
Trial, place of, limitations on, 130, n. 51; 134; 259 
Witnesses, limitations on jurisdiction of sending state over, 23; 92; 

104; 120; 133; 248; 256 et seq. 

Compulsory process, right of accused to, 256 
Agreements other than NATO, 257 
NATO agreement, 256 

E 
Exclusive jurisdiction, agreements according United States 
Allies, various, World War II, 134, n. 58 
Belgium, government in exile, 114, n. 7 
Canada, World War II, 137 
Ethiopia, 150 

France, government in exile, 114, n. 7 
France, World War I, 116 

Greenland, agreement with Denmark for defense of, 151 
Lebanon, 154 

Mutual Defense and Military Aid agreements, 151 
Norway, government in exile, 114, n. 7 
South Korea, 150 

United Kingdom, World War II, 129 
West Germany, 150 
Extraterritoriality, American experience in exercise of, 15 et seq. 
Abuses of privileges of, 21, n. 57 
American law, federalism, and, 19 
American law, territorial basis of, and, 19 
Armed forces, immunity of, impact of on attitudes toward, 146 
Arrest, immunity of Americans from, 19 
Assimilated nationality, 20 ; 50 
Constitutionality, 19, n. 50 
Consuls, authority of, 19 

Judicial functions, objections to assigning to consuls, 22 
Law enforcement, lax, 22 
Ministers, authority of, 19 
Place of trial, remoteness of, 24 
Prison facilities, lack of, 24 



393 



Range and duration of, 18 
Reasons for exercise, 20 

Arguments against, 20, n. 56 
Witnesses, limitation of jurisdiction over to American nationals, 

as weakness of, 23 ; 92 
Extraterritoriality, fiction of, relevance of, to jurisdiction over and 
immunities of 
Diplomats, 26 
Land forces, 83 

Merchant ships, crews of, 44 ; 47 ; 52 
Warships, crews of, 55 ; 62 ; 68 



Flag states, jurisdiction of 

Flag determinative of jurisdiction, 43 
High seas, vessels on 

Merchant ships, 46 

Warships, 59 
Port, foreign, vessels in 

Merchant ships, 52 
France 

Agreement with United Kingdom, 1948, 143 
Anglo-French Declaration, World War I, 116 
Franco- American agreement, World War I, 116 
Franco-Belgian agreement, World War I, 115 
Government in exile, United States agreement with, 114 
World War I agreements, 115 et seq. 



General Convention on Privileges and Immunities of United Nations, 30 
Governments in exile, agreements with, 114 

H 

Headquarters Agreement, United Nations, 31 
High seas, jurisdiction of flag state over vessels on 

Merchant ships, 46 

Warships, 59 



Immunities of armed forces, visiting. See armed forces, visiting. See also 

enforcement jurisdiction ; warships, crews of 
Immunities of crews of warships. See warships, crews of 
Immunities of representatives of members and officials of international 

organizations. See international organizations. 
Immunities Act, International Organizations, 31 

Immunities, Privileges and, General Convention on, of, United Nations 30 
Immunities of warships. See warships, immunities of 
Immunity of states, 25 



394 

International Organizations Immunities Act, 31 

International organizations, immunities of representatives of members and 

officials of, 29, 30 

General Convention on Privileges and Immunities of United Nations, 30 

Headquarters Agreement, United Nations, 31 

International Organizations Immunities Act, 31 

League of Nations, Covenant of, 30 

United Nations, Charter of, 30 
Inter se offenses 

Acts in performance of duty and, 230 et seq. 

Agreements other than NATO, 189 et seq. 

Brussels Treaty Powers, agreement of, recognizing, 223 

Concept of, basis of, 186; 207 
Analogies and attitudes, 187 

Dependents, extension of concept to offenses against, 189; 190; 192 

Multiple offenses and, 193 
Double jeopardy, 194 

NATO agreement, 189 

On base and, 194; 206; 208 

Passive personality principle and, 185 

Territorial principle and, 195 

Unconstitutionality of courts-martial jurisdiction over civilians and de- 
pendents, impact on inter se concept, 192 

United Kingdom agreement with France recognizing, 143 

Warships, crews of 

Private acts on board, 67 
On shore, 72; 74, n. 30 

J 

Jurisdiction, concurrent. See concurrent jurisdiction. 

Jurisdiction, enforcement. See enforcement jurisdiction. 

Jurisdiction, exclusive, in receiving state, 128 

Jurisdiction, exclusive, in sending state, 93 

Jurisdiction, extraterritorial. See extraterritorial jurisdiction; 

extraterritoriality, American experience. 
Jurisdiction, nationality. See nationality principle, jurisdiction on 
Jurisdiction, passive personality. See passive personality principle, 

jurisdiction on 
Jurisdiction, primary and secondary. See primary and secondary jurisdiction. 
Jurisdiction, protective principle. See protective principle, jurisdiction on 
Jurisdiction, reasonableness rule on, 2; 15 

Jurisdiction, territorial. See territorial principle, jurisdiction on 
Jurisdiction, universal. See universality principle, jurisdiction on 

K 

Korea, South 

American troops, status of, 150 

Military Advisory Group, status of, 150, n. 19 



395 



Land forces. See armed forces, visiting. 

Consent, express, required for entrance of, 78 

Local law, duty to obey, 102 

Warships, crews of, comparison with, 78 
League of Nations, Covenant of, provisions on diplomatic immunities, 30 
Leave, member of armed forces on, 160 et seq. 

NATO Agreement, 160 

Agreements other than NATO, 161. See also duty, temporary. 
Lebanon, United States agreement with, 154 
Liberation, armies of, 114 
Local law, duty to obey 

Land forces, 102; 130, n. 51 

Military law as including, 103 

Warships, crews of, 63 

Sanctions available to littoral state, 63 

M 

Merchant ships, crews of, jurisdiction, 43 et seq. 

Collision, 47 

Convenience, flags of, 44, n. 2 

Extraterritoriality, fiction of, and, 44 ; 47 ; 52 

Flag, ships, and jurisdiction, 43 
Flags of convenience, 44, n. 2 

Floating island, fiction of, 44 

Functional basis, jurisdiction, 45 

High seas, crimes on, 44 ; 46 

Individual interests of seamen not factor, 54 

Nationality of seamen not factor, 50 ; 54 

Passengers, crimes of, 48 ; 51 

Piracy, 44, n. 5 

Port, ships in foreign port 

Rules allocating jurisdiction, 48 
• ■ r ■ ■ Anglo-American theory, 49 
French theory, 49 
Peace of port, crimes disturbing, 48 ; 49 ; 53 

Shore, seamen on, 52 

Strangers, crimes by, 48; 51 

Territorial waters, ships passing through, 47 

Warships, crews of, and merchant seamen, 65 
Military exigency as basis of immunity 

Land forces, 83; 87; 109 

Relative, 111 

Warships, 58 
crews of, 58 ; 64 
Military operations, acts in course of, and acts in performance of duty, 213 
Murder, manslaughter, rape, special treatment of, 128; 155; 244 



396 

N 

NATO Agreement 

Acts in performance of duty, 222 et seq 

Civil rights, 258 

Civilians and dependents, 162 et seq.; 170; 174 

Constitutionality of court-martial jurisdiction over civilians and 
dependents assumed, 157 

Custody, 254 

Death penalty, 258 

Dependents. See civilians and dependents. 

Determination that offense was duty connected, 234 

Duty status, relevance of, 160 

Inter se offenses, 189 et seq. 

Leave status, relevance of, 160 

Nationality, relevance of 

Civilians and dependents, 166 
Members of force, 158 

On base offenses, 197 

Police power, 249 

Sending state, offenses against law of, 156 

Standard for other agreements, 149 

Waiver, 239 et seq. 

War, not applicable in time of, 152 

Witnesses, 256 
Nationality, assimilated, 11; 50; 85 
Nationality, crews of warships, relevance, of 67 
Nationality, members of force, relevance of 

Agreements other than NATO, 159 

NATO Agreement, 158 

Prior practice, 159, n. 6 
Nationality principle, jurisdiction on, 10 

Allegiance as rationalization, 11 

Assimilated nationality, 11; 50; 85 

Land forces, sending state's jurisdiction over, and, 85 et seq. 
Nationals, receiving state, protection of, from jurisdiction of sending state, 

116; 168; 249 et seq.; 256 et seq. 
Navy Regulations, United States, 68, n. 21; 75, n. 34 and 35; 248 
Norway, United States agreement with government in exile of, 114 
Nuclear weapons, relevance of development of, 95 

O 

On-base offenses 

Agreements other than NATO, recognition, 201 et seq. 

Arrest, power to, on base, 249 et seq. 

Brussels Treaty Power agreement, not recognized under, 145 

Bustamente Code, 198 

Extraterritoriality, fiction of, and, 198 

Immunity, denial of, 143, n. 9 and 10 



397 

International law, rule regarding immunity, 127; 137; 138; 197; 199; 200 
Inter se and on-base offenses, 195 ; 206 ; 208 
Lease, relevance of concept, 200, n. 10 
Military exigency as basis for immunity, 199 
NATO agreement, no recognition of concept in, 197 
Nicaragua, Convention with, 202 
Panama, Convention with, 201 
Territorial principle and, 208 

Unconstitutionality, court-martial jurisdiction over civilians and depend- 
ents, impact of holding on, 208 
United Kingdom-France agreement, not recognized under, 143 
United Kingdom position regarding, World War I, 119 
Visiting Forces (British Commonwealth) Act, 1933, debate regarding, 126 
Warships, analogy to, 199; 207 
Writers, views of, 197; 199 



Passage, troops in, 112; 148, n. 16 

Passive personality principle, jurisdiction on, 13, n. 33. See also inter se 
offenses; acts in performance of duty, victim, nationality; warships, crews 
of, victim, nationality. 
Place of offense, trial at, 130, n. 51 ; 134, 259 

Police power, receiving state, use in aid of sending state, 92 ; 120 ; 249 
Police power, sending states, 249 et seq. 
Arrest, power to 

Agreements, other than NATO agreement, 250 et seq. 
Members of force, 249 et seq. 
NATO agreement, 249 et seq. 
Off base, 249 et seq. 
On base, 249 et seq. 

Receiving state, nationals of, 249 et seq. 
Prescribe, jurisdiction to 

Land forces, sending state, 85 et seq. 
Warships, acts of, 63 ; 75 

Warships, crews of, private acts, receiving state, 65, n. 18 
Primary and secondary jurisdiction, concept of, 155 
Protective principle, jurisdiction on 
Assimilated nationality and, 11 
Conflicting state interests and, 13 
Land forces and, 86 
Merchant seamen and, 51; 52 
Recognition of, limited, 12 



Rank as basis for allocating jurisdiction, 69, n. 22; 71, n. 23; 245 
Representative character as basis for immunity 

Diplomats, 26 

Land forces, 82 



398 



Warships, 58 
Warships, crews of, 58 



Security interest of state as basis for immunity, 58 ; 59 
Service Courts of Friendly Foreign Forces Act, 131 
Sovereignty, concept of 

Acts in performance of duty and, 212, n. 3 

Armed forces, immunity of, and, 83, n. 12 

States, immunity of, and, 25, n. 2 

Territorial jurisdiction and, 4 
Strangers to vessel, immunity of 

Merchant ships, 51 ; 54 

Warships, 68 

Obligation of commander to deliver to local authorities, 68 



Territorial principle, jurisdiction on, 2 et seq. 
. Administration of justice, effective, and, 5 

Aliens, extends to, 3 

Marshall, C. J., views regarding, 3, n. 9 

Anglo-American law, basic in, 3, n. 7 ; 102 
Jurors, early status of, relevance of 5 

Armed forces, visiting, receiving state's claim of jurisdiction rooted in, 
7; 102; 155 

Equal justice under law and, 109 

Exclusiveness of, never recognized, 8 

Extension of, to embrace jurisdiction in substance extraterritorial, 7 

Fairness and, 5 

Inter se offenses and, 195 

Law and order, respect for, and, 5 

Marshall, C. J., affirmation of, 80 

Public order, obligation of territorial state to maintain, and, 4; 102 

Recognition universal, 2 

Sovereignty and, 4 

Territorial state, institutions shaped by, concept of, and, 4 

Venue and, 5; 100 

Welfare of citizens, obligation of state to advance, and, 4 
Territorial waters, ships passing through 

Merchant ships, 47 

Warships, 67 

NATO agreement, 158 

U 

United Kingdom 

Allied Forces Act, 1940, 127 

Anglo-French Declaration, World War I, 116 



399 



Czecho Slovakia, agreement with, World War II, 128 

Defense of the Realm Regulation, World War I, 121 

Exchange of Notes, July 27, 1942, 129 

France, agreement on status of forces, 1948, 143 

Governments in exile, agreement with, 128 

United States of American (Visiting Forces) Act, 1942, 129; 142 

United States, negotiations with, World War I, 119 et seq. 

Visiting Forces (British Commonwealth) Act, 1933, The, 124 
United Nations, Charter of, provisions on diplomatic immunities, 30 
United Nations, General Convention on Privileges and Immunities, 30 
United Nations, Headquarters Agreement, 31 
Universality principle, jurisdiction on 

Arguments for and against, 14, n. 34 

Objective territorial principle and, 15 
United States Navy Regulations, 68, n. 21; 75; n. 34 and 35; 248 
United States of America (Visiting Forces) Act, 1942. [United Kingdom.] 

Enactment, 129 

Repeal, 142 

V 

Vienna Convention on Diplomatic Relations, 39; 160 

Visiting Forces (British Commonwealth) Act, 1933, 124 et seq. 

Visiting Forces (United States of America) Act. [Canada], 142 

W 

Waiver, 239 et seq. 

Agreements, other than NATO, 240 

Blanket waiver, West Germany, 241 

Criticism of role of, 243 

Experience, United States, as sending state, 241 

Greece, supplemental agreement with, 240; 244 

Individual, not privilege of, 239 

Libya, agreement, 241 ; 244 

NATO agreement, 239 

Netherlands, supplemental agreement with, 240; 244 

Practice, United States, regarding requests for, 240 

Serious offenses, differentiating, 240, n. 10; 244 

State, privilege of, not of individual, 239 

West Indies, Federation of, agreement, 241, n. 10 

West Germany, blanket waiver by, 241 ; 244 
War, peace, relevance of to status of forces, 142; 146; 153; 190 

Agreements other than NATO, 15 

NATO agreement, 152 
Warships, 55 et seq. 

Consent, implied, as basis of immunities, 59 

Crews of warships, relation of immunities of, to immunities of 
warships, 57; 73 

Flag state, exclusive jurisdiction of, over, 59; 60 



400 

Relevant to enforcement jurisdiction rather than jurisdiction to 
prescribe, 65, n. 18 

Flag state's right to exercise enforcement jurisdiction on, 75 
Littoral state's enforcement jurisdiction precluded, 60; 65, n. 18 
Early American rule contra, 60, n. 11 
High seas, jurisdiction over warships on, exclusively flag state's, 59 
Inviolability, immunities of warships more accurately described as, 62 
Military exigency as basis of warships' immunities, 58 
Prescribe, jurisdiction to 
Flag state, 75 
Littoral state, 63 
Representative character as basis of warships' immunities, 58 
Security interest of flag state as basis of warships' immunities, 58 ; 59 
Warships, crews of, 55 et seq. 

Jurisdiction and Immunities — General 

Consent, implied, as basis of immunities, 59 
Discipline, need to maintain, as basis of immunities, 65 
Extraterritoriality, fiction of, as basis of immunities, 55; 62; 68 
Functional bases for immunities, 57 
Land forces, analogy to, 55 
Law, local, obligation to obey, 63 

Littoral state, sanctions available to for violations of, 63 
Military exigency as basis of immunities, 58 ; 65 
Nationality not relevant, 67 
NATO agreement, 158 
Prescribe, jurisdiction to, 65, n. 18 
Representative character as basis of immunities, 58 
Warships, relation of immunities of crew to immunities of, 57 ; 73 
Acts on board 

Flag state, jurisdiction to prescribe and to enforce, 60; 65, n. 18; 75 
Merchant seamen, status of, compared with crews of warships, 65 
Private acts 

Basis of immunity for, 64 

Military exigency, 65 
Inter se offenses, 67 
On-base offenses, analogy to, 199 
Victim, nationality of, relevance, of 67 
Acts on shore 

Commanders, 69, n. 22; 82 

Duty, acts in performance of, 74 et seq. 

Duty status, relevance of, 70 et seq. 

Enforcement jurisdiction, right of sending state to exercise on shore, 

United States Navy Regulations, 75, n. 35 
Inter se offenses, 72, n. 26 
Nationality of victim, relevance, 74, n. 30 
NATO agreement, 158 

"Organized force," shore party may have status of, 74 
Private acts, 69 ; 146 
Commanders, 69, n. 22 



401 

Duty status, 71 

Functional basis for immunity, 73 
Military exigency as basis for immunity, 73 
Inter se offenses, 72 ; 74, n. 30 
Shore party, status of, 74 

Consent necessary to landing of, 248 
Victim, nationality of, relevance, 74, n. 30 
Warships, strangers to, not immune, 68 

Obligation of commander to deliver to littoral state's authorities, 68 
Warships, visits of, implied consent sufficient to permit, 78 
Witnesses, limitations on authority over, 23; 92; 104; 120; 133; 248; 256 

•& U.S. GOVERNMENT PRINTING OFFICE: I96S 738-116